By Sherry Robinson
All She Wrote

 How long does it take you to get an appointment with your doctor? If your answer is weeks or months, or “What doctor?” Think New Mexico has you in mind.

The nonpartisan think tank recently published a plan to solve New Mexico’s healthcare worker shortage. The group has done its usual thorough work of defining the problem and presenting a potentially do-able solution.

Most riveting, I thought, is the part about reforming the state’s medical malpractice act. This 48-year-old law, its changes and loopholes are a giveaway to malpractice attorneys. We might as well buy national advertising warning doctors to stay away from New Mexico.

Here are a few alarming facts from the report:

· New Mexico ranks second highest in the nation for the number of medical malpractice lawsuits per capita. The number is more than twice the national average.

· Medical malpractice insurance premiums are nearly twice as high as they are in Arizona, Colorado and Texas, and the costs are growing.

· Even with spiraling premiums, many malpractice insurance companies lose money. The statewide loss ratio for medical malpractice insurers was highest in the nation in 2022, at 183.6%. So for every $100 insurers received, they paid out $183.60.

“The high cost of malpractice insurance, and the high likelihood of being sued, discourage doctors and other health care workers from practicing in New Mexico,” says Think New Mexico.

It’s not that our doctors are worse; we have “a system in place that incentivizes lawyers to file malpractice lawsuits here,” according to the report.

Think New Mexico recommends six reforms:

· Cap attorney’s fees. Lawyers receive 30% to 40% of the verdict. That’s money that the patient doesn’t receive for future medical care. Lawyers are entitled to a reasonable living but not “multi-million dollar windfalls at the expense of gravely injured patients.

·End lump-sum payouts. Previously, the patient’s treatment over time was paid as expenses were incurred. In 2021 lawmakers reached a hard-won compromise on a controversial medical malpractice reform bill. In the uproar, somebody sneaked in wording that allowed a single, lump-sum payout based on an estimate of the client’s lifetime medical costs. But after the attorney’s share, the patient may not have enough left.

· Stop venue shopping. Lawyers can file medical malpractice lawsuits anywhere in the state, and they prefer places with sympathetic juries. Thirty states now require suits to be filed in the county where the alleged malpractice occurred. In New Mexico, “trial lawyers have repeatedly racked up record-breaking verdicts.”

· Raise the legal standard for punitive damages and cap them. The 2021 changes to malpractice law allow the highest caps of the 29 states that cap malpractice liabililty, and punitive damages aren’t capped. While punitive damages are rare in other places, they’re routine here, and unlike 32 other states, our burden of proof is minimal.

– Prohibit lawyers from filing multiple lawsuits over a single malpractice incident – a way lawyers get around caps on damages.

· Require that damages awarded for future medical costs reflect the actual cost of care.

 Spend five minutes in the Roundhouse and you quickly see the chummy relationship between the New Mexico Trial Lawyers Association and progressive Democrats. The 2021 changes passed with their support.

Then-Sen. Gay Kernan, R-Hobbs, said later: “It was the worst vote I have ever taken.” Doctors weren’t in the room, and the negotiation was “flawed from the beginning.” She voted for it out of fear the caps could disappear.

Last year another medical malpractice bill threatened to shutter outpatient facilities. Republicans opposed it. Dems dithered until the governor pulled their heads from the sand.

 When legislators ask for your vote, question them about medical malpractice reform. The answer will show whether or not they’re working for you.

Sherry Robinson is a longtime New Mexico reporter and editor. She has worked in Grants, Gallup, the Albuquerque Journal, New Mexico Business Weekly and Albuquerque Tribune. She is the author of four books. Her columns won first place in 2024 from New Mexico Press Women.