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A Cure for Malpractice Act

Deborah Baker’s article “Malpractice Compromise Elusive in New Mexico” was an excellent summary of the dilemma affecting all New Mexico medical care providers.

In 1970, Ralph Marshall, the executive director of the New Mexico Medical Society, conceived a sponsored program to resolve the first crisis in liability insurance. The plan was underwritten by Travelers Insurance Company.

In 1975, Travelers quit writing medical liability insurance and I helped form the New Mexico Physicians’ Mutual Insurance Company. I was a lobbyist who worked to pass the New Mexico Medical Malpractice Act in 1976 that enabled the New Mexico Physicians’ Mutual formation, and I served as the first CEO.

In 1999, I was appointed superintendent of insurance for New Mexico.


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I have a perspective of the issues encompassing medical liability insurance that comes with time and exposure. Based on this perspective, I believe there are facts that should be confronted:

♦ The most recent negotiations regarding the New Mexico Medical Malpractice Act involved only physicians and the trial bar. With the passed bill, the physicians resolved the issues of corporate coverage and the constitutionality of the act’s limits. Left out of the negotiations and out of the act were almost all allied health care providers and employees.

♦ The governor vetoed the substitute bill and thereby created an unprecedented opportunity to resolve all the issues that have plagued the majority of medical care providers in New Mexico and the New Mexico Legislature for years.

Truths regarding the New Mexico Medical Malpractice Act have been exposed in studies as recent as 2005 (the New Mexico Health Policy Commission) and 2008 (Superintendent’s Task Force on Revising Patients Compensation Fund Caps).

Truth: The original purpose of the New Mexico Medical Malpractice Act was: “to promote the health and welfare of the people of New Mexico by making available liability insurance for (all) health care providers in New Mexico.”

Truth: The limited definition of who is covered by the act was determined in 1976 and has never been revised. The majority of health care providers and hospitals have been left out of the protection of the act. With the present and future expansion of health care providers, all health care providers should be included in a revised act. Indiana, whose law we copied, has since revised their act to include all health care providers, and premiums for physicians are less than New Mexico premiums while having more than double the limits of the New Mexico act.

Truth: The field of medical care is now facing exponential change driven by innovation and technology. Non-physician health care professionals play an integral role in New Mexico’s health care delivery system because we are a large, rural, poor and thinly populated state. The ancillary providers and the small community hospitals that provide a high percentage of rural health care are struggling to find adequate liability insurance.

New Mexico needs to revise the New Mexico Medical Malpractice Act. New Mexico needs a Medical Professional Liability Act with a recoverable maximum which is fair and covers all health care providers and entities involved in one medical accident.