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Supreme Court could make dire doctor situation worse

The Kent Walz article “Face to Face with Doctor Paul Roth” (Sunday Journal, Oct. 20) was enlightening, and gave insight into UNM’s outstanding Health Sciences Center and its chancellor.

Walz’s accompanying article “Physician shortage and soaring costs” highlights two of the major disturbing health care issues that New Mexico is experiencing.

New Mexico’s physician shortage is about to be exacerbated as a result of a ruling by the New Mexico District Court that the New Mexico Medical Malpractice Act (MMA) is unconstitutional because of the unchanged $600K liability limit of the Patient Compensation Fund (PCF) for a medical error. That ruling is now being heard by the New Mexico Supreme Court. If the Supreme Court agrees with the District Court and finds the MMA unconstitutional, the MMA will be eliminated and the protection from excess claims will cause more loss of New Mexico physicians and extreme losses for hospitals. The $600K limit applies to pain and suffering, and economic losses, and all medical expenses are paid with no limit.

New Mexico’s MMA has long credibility, having survived for 44 years, and has protected physicians only until 2016, when hospitals found an insurance company to write the primary $200K on the “occurrence form” required by MMA statute and became covered by the MMA. The PCF Fund balance has increased some 700% due to the four years of increased PCF surcharges paid by hospitals, and is now essentially solvent.

The underlying rational for a government-sponsored PCF is that for-profit insurers have proven an unreliable source of medical malpractice liability coverage. When private insurers experience high losses, they either substantially increase premiums or exit the market. The PCF approach addresses the dual problems of lack of availability and affordable coverage, and stabilizes an otherwise unstable medical malpractice insurance market. A liability limit is necessary for the PCF to maintain solvency; however, it must be fair to injured patients.

If the New Mexico MMA is to survive, it must be revised by the New Mexico Legislature and must accomplish the following:

1) The limit of $600K must be increased to $1 million with a cost-of-living increase every three years.

2) Hospitals and medical facilities should have a higher base limit and aggregate limit coverage to a level commensurate with their increased risk, based on number of beds, number of health care providers and actuarial studies.

3) The current MMA has only eight named eligible health care providers and excludes most ancillary providers, who could alleviate the lack of physicians and who already “maximize what other clinicians can do.” Excluded include advanced practice registered nurses who hold doctorate and masters degrees who could serve New Mexico’s rural communities as primary care givers. Also excluded are long-term care facilities and nursing homes, which are needed to care for our aging population. Long-term care facilities now pay exorbitant premiums to unregulated surplus lines insurers.

In the article, Walz quotes Roth, “New Mexico has … a much older population … demand for more intense medical care as we all age will increase at the same time the average age of physicians in New Mexico is higher than the rest of the country.” Meanwhile, only 25% to 30% of UNM medical school graduates stay in New Mexico.

All of the above gives weight to the necessity to revise the N.M. Medical Malpractice Act as judicially and quickly as feasible to ensure its continued survival, and to aid in maintaining and increasing the number of physicians and health care providers in New Mexico.

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