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Editorial: 2 new laws could lead to fewer physicians, hospitals in New Mexico

The 2021 Data Book compiled by the state Human Services Department is a series of snapshots that, when taken together, paint a rather bleak picture of life in the Land of Enchantment.

Many of the problems are long-standing and related to poverty and low levels of education attainment. Our poverty rate of 18.2% was second only to Louisiana and far outstrips the national rate of 12.3%. We lead the nation in the percentage of people receiving Medicaid. Nearly 11% of the state’s children are being raised by grandparents, and nearly 48% of households with children are single-parent households.

Particularly telling – as we, hopefully, emerge from a COVID-19 pandemic that has claimed nearly 4,000 New Mexican lives and that at times stressed our health care system – are the data points on physicians and hospital beds. We have 17.7 general hospital beds per 10,000 population compared with 23.5 nationally. For intensive care, we have 2.2 beds per 10,000 compared to 2.7 nationally. And we have just 5.5 primary care physicians (full time equivalents) per 10,000 people compared with 7.9 as a national benchmark. Our physician force is one of the oldest in the nation. Our shortage of nurses, specialists in fields such as neurology and other health care providers is not in dispute.

In the face of data compiled by HSD, one would think the governor and state lawmakers in their just-concluded 2021 session would have taken steps to perhaps bolster health care infrastructure. Instead, they did just the opposite on two key pieces of legislation.

The biggest setback to your chances for quality health care in the future is legislation pushed by trial lawyers to reshape the Medical Malpractice Act. House Bill 75 by Rep. Daymon Ely, D-Corrales, kicks hospitals out of the patient compensation fund as well as dramatically increasing the liability limits of $600,000, plus medical expenses, for medical malpractice.

The bill was aimed at strengthening New Mexico’s patient compensation fund, which faces projected deficits. The account covers medical malpractice claims that exceed a certain amount. Lawmakers also heard from emotional family members who testified that hospital malpractice seriously harmed or even killed their loved ones, and Ely contended that HB75 would rightfully force large corporate hospitals to take full responsibility for their medical errors.

The bill barely cleared the House of Representatives even with a wide Democratic majority and then moved to the Senate, where the health care industry agreed to a compromise that would phase hospitals out over a six-year period and raise the damages cap for hospitals and outpatient facilities to $4 million next year with eventual increases to $6 million. It also increases the cap for independent physicians to $750,000. The compromise legislation did take the positive step of adding certified nurse practitioners, midwives and certain other medical providers into coverage under the law.

Hospital officials, seeing the handwriting on the wall in the Democrat-controlled Senate, agreed to the deal, noting diplomatically that “Obviously, it’s not everything we would have looked and hoped for.”

Gov. Michelle Lujan Grisham had an active role in pushing this legislation in the House and then took credit for convening key stakeholders when it moved to the Senate. A spokeswoman said the governor was pleased to sign legislation to “strike a balance between granting New Mexico doctors access to affordable legal insurance while also ensuring patients harmed by wrongdoing can get justice in court.” The end result will be higher caps, more lawsuits and bigger settlements. And, over time, likely fewer doctors in a state where we already have a shortage.

Dr. Donald Shina, a retired radiation oncologist at Christus St. Vincent in Santa Fe, made the point that HB75 would inhibit the ability to “recruit and retain providers.” “The rural parts of our state already struggle with inadequate access to care, and this proposed legislation will only exacerbate this situation as physicians and specialists will leave the state.”

The compromises that reined in the legislation a bit hopefully will slow that dynamic. Let’s also hope analysis of this law’s effect continues as the six-year phase-in occurs so lawmakers can make changes if evidence proves it is hurting our health care delivery – as we believe it will.

Another misguided piece of legislation, which passed only via some extraordinary 11th-hour legislative maneuvering, was a new $153 million state tax on health insurance premiums that replaced a similar federal provision that expired. Of the new money, $115 will be dedicated to an affordability fund and $38 million to the general fund. But the cost of the legislation by Rep. Deborah Armstrong, D-Albuquerque, will be borne in part by businesses that provide employees with insurance – an ever-shrinking part of the health care picture in New Mexico. And that has consequences because it is commercial insurance that covers underpayment for services by Medicare and Medicaid. Armstrong also says Medicaid and Medicare will pick up a major share of the bill.

The “affordability” goal is worthwhile. And supporters insist this shouldn’t hurt businesses’ bottom line since it replaces the federal tax that expired. But as Rep. Rebecca Dow, R-Truth or Consequences, points out, small businesses could use some relief after more than a year of health restrictions and there is no guarantee the money collected will ever actually reduce health care costs.

So the state HSD databook presents some depressing data – health care infrastructure being no exception. Lawmakers and the governor – even when trying to address the ailing patient compensation fund and assisting victims of malpractice – would have done well to take into account the admonition in the Hippocratic oath: “First, do no harm.” Unfortunately, they did just the opposite.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.