Fixing malpractice law flaw should be lawmakers’ job No. 1

Southwest Gastroenterology Associates (SWGA) was established over 40 years ago by Dr. Robert Lynn. I joined the practice in 1997 as the only female gastroenterologist in New Mexico. Since then, our practice has grown to include 12 physicians, six females, six males, five advanced care practitioners, nine certified nurse anesthetists, 30 registered nurses — over 120 employees in total.

We provide comprehensive inpatient and outpatient care for more than 250,000 active patients with gastrointestinal, hepatobiliary and pancreatic diseases throughout New Mexico.

In 1998 we established Southwest Endoscopy to better meet the needs of New Mexicans. We perform over 13,000 outpatient upper endoscopy and colonoscopy procedures at our independently owned outpatient care facility (OCF) at a much lower cost to the patient, to insurance companies and to the state, than the equivalent procedures performed at a hospital-based outpatient department (HOPD). This is because the state — Medicaid — and federal government — Centers for Medicare — classify independently owned OCF as different entities than a hospital or HOPD, which is reflected in markedly lower reimbursement rates for procedures performed at an independent OCF.

The Medical Malpractice Act, HB 75, which was passed in 2021, erroneously lumped independently owned outpatient care facilities into the same category as hospitals, and consequently, independently owned OCFs such as Southwest Endoscopy and Valley Home Dialysis will be without insurance within the act as of Jan. 1, 2024, as there is no insurer in the country willing to write a policy.

Why is that? It is because the caps on damages set by HB 75 deviate so far from national standards. Of course patients should be compensated for damages suffered by malpractice, which is why it is essential physicians in New Mexico be able to secure malpractice insurance. For the safety of our patients and the medical community, we cannot practice without insurance or underinsured.

In addition to being unable to secure coverage within the act due to the unprecedented caps, we have been unable to obtain quotes for occurrencebased or claims-made coverage of $5 million per occurrence outside of the act as there is no insurance company willing to provide that amount of coverage in New Mexico.

There are two bills, Senate Bill 296 and House Bill 88, which have been submitted that will fix this misclassification and allow independently owned OCFs to obtain insurance within the act and continue to serve New Mexicans. Despite the medical community’s outreach to our legislators regarding the critical shortage of health care in New Mexico and the importance of action to help retain and recruit physicians, there appears to be little interest among many legislators and the committee chairs that have been assigned HB 88 and SB 296. Whereas HB 88 has finally been scheduled for a hearing by the House Health & Human Services Committee on Feb. 20, SB 296 has yet to be scheduled. For the health of our citizens, I wish the committees assigned HB 88 and SB 296 had been as motivated as the committees that have passed noncritical bills like SB 188, Official State Aroma.

SWGA is facing the prospect of closing our doors on Jan. 1 if SB 296 and/or HB 88 do not pass this legislative session.