Copyright © 2021 Albuquerque Journal
SANTA FE – A group of independent physicians and medical practices say they are preparing to close their offices or curtail work Dec. 31 unless New Mexico revises its new medical malpractice law – a development they say would worsen the state’s chronic shortage of health care providers.
The group is proposing revisions they say would clarify the law to respond to questions raised by their insurance carriers, not make wholesale changes.
Gov. Michelle Lujan Grisham and state legislators are now weighing the request for emergency action. A special session began this week, offering a chance to revise the law if policymakers are convinced amendments are necessary and willing to act fast.
The debate focuses on the Medical Malpractice Act – overhauled earlier this year amid delicate negotiations among hospitals, health care providers, trial lawyers and patients. Much of the act goes into effect Jan. 1.
But doctors at Southwest Gastroenterology and Southwest Endoscopy – among other medical practices – say the details of the law may have an unintended impact.
The concern centers on definitions determining who in the health care system is subject to a $4 million cap on medical malpractice damages and who faces a $750,000 limit.
The larger cap was generally intended for big hospitals, while the lower one was intended for independent physicians who aren’t employees of a hospital.
But insurance carriers have raised questions about how to handle independent physicians who sometimes work at hospitals or own and operate their own small clinics.
Dr. Gabrielle Adams of Southwest Gastroenterology said her practice would have to close in a few weeks and transfer tens of thousands of patients because of an inability to get the necessary insurance for a $4 million cap, unless the law is clarified.
“There is not another GI practice that can absorb the patients we have,” Adams said in an interview.
Executives at X-Ray Associates of New Mexico and New Mexico Orthopaedics – both of which employ independent physicians – said their surgeons may not be able to work at hospitals without technical changes to the law.
“I don’t think it can wait,” surgeon Jeffrey Racca of New Mexico Orthopaedics said of the need for changes.
The new medical malpractice law was adopted earlier this year during the regular 60-day legislative session. Two competing proposals initially generated intense debate, including heartbreaking testimony by families harmed by medical wrongdoing.
But a coalition of physicians, trial lawyers and others eventually reached a compromise to break the impasse and secure legislative approval for updates to the law.
Kathy Love, an Albuquerque attorney and former president of the New Mexico Trial Lawyers Association, said the stakeholders are already moving toward another agreement to address the new insurance concerns.
She described the updates as technical in nature.
“We all recognize that we need these facilities,” Love said, “and we need them to have coverage when patients get hurt there.”
Ezra Spitzer, an advocate whose testimony about the death of his daughter Effie played a role in the passage of this year’s bill, said the updates now under discussion would simply match the intent of the earlier compromise.
“It’s a complicated act,” he said, “and there’s a technical fix.”
Love said the parties are nearing an agreement but that it’s premature to discuss details.
Doctors also sounded optimistic about a deal.
In a written statement, Annie Jung, executive director of the New Mexico Medical Society, thanked “the trial attorneys, the insurance providers, and other stakeholders for their openness and willingness to find a remedy so New Mexicans can continue to receive the health care they need, uninterrupted.”
The parties face deadline pressure, especially if legislative approval will be required.
Lujan Grisham spokeswoman Nora Meyers Sackett said the administration is meeting with the parties and will take action if necessary.
“What’s become apparent in those conversations is that, at a minimum, clarity is likely needed in what the Legislature produced in the Medical Malpractice Act reform,” Sackett said.
It would take Lujan Grisham’s approval – through an executive message – to add proposed legislation to the agenda of the special session.
Lujan Grisham prefers an agreement that doesn’t require legislative action, Sackett said, but “absent that, the governor will send down a message to make germane a technical fix to the act here in the ongoing special session.”
Questions raised over damage caps
The complex legislation passed this year was intended to ensure health care providers could afford insurance coverage while also allowing patients who endure a catastrophic injury to seek justice in court.
It created the two new caps on damages – a $4 million limit for hospitals and $750,000 for independent physicians. The old limit was about $600,000 for certain damages. Some of the legal questions raised by insurance carriers now center on whether independent physicians who sometimes work at hospitals should be subject to the higher cap as “agents” of the hospital. There are also questions about how to handle small outpatient clinics owned and operated by independent physicians.
Sen. Gay Kernan, R-Hobbs, said she hopes the trial attorneys and physicians can come to an agreement quickly on how to clarify the malpractice law.
“It’s absolutely critical that everyone recognize this is a real crisis,” Kernan said.