EDITORIAL: The Legislature needs to change malpractice laws

The survey results were alarming. Last year, the group Citizens for Healthy New Mexico Policy polled physicians who are part of the Greater Albuquerque Medical Association and the New Mexico Medical Society, and found that one-third of doctors in the state are "likely to leave New Mexico to practice elsewhere." When given a chance to explain why, two-thirds of respondents said it was because of the high risk of malpractice lawsuits. 

Nearly all respondents — 96% — believe doctors are "treated unfairly under New Mexico's medical malpractice laws and legal system." And nearly 9 in 10 physicians are worried that a large punitive damage judgment or settlement could drive them out of practice and hurt their families' wellbeing.

For months we've published columns from a wide variety of people who have been affected by the health care system in New Mexico. We've published stories from patients who had to travel out of state for a child to see a physician via telehealth, retired adults who are moving because they can't find a physician here and patients who were harmed or misdiagnosed when treated at a hospital and needed to seek relief through the court system. We have more local columns on the topic in today's edition.

As the Editorial Board, we've met with the New Mexico Safety Over Profit, the New Mexico Hospital Association, Think New Mexico and members of the Greater Albuquerque Medical Association. After discussions with the stakeholders, we think it's time to make changes to try to improve access to care for everyone. 

New Mexico needs to reform its medical malpractice laws — and the governor should put it on the call for this year's 30-day session, which starts this week. 

What does reform look like? A good place to start is to change the way that punitive damages are negotiated and awarded in malpractice cases. 

Punitive damages are awards in addition to compensatory damages that are intended to punish the defendant for serious and egregious conduct. So in theory, they should only be considered for the most serious of cases. But in New Mexico, plaintiffs can request them from the onset of a lawsuit, which tilts the scale against doctors and hospitals during settlement negotiations and considerations. It's a large reason why many doctors and health systems are paying exorbitant insurance fees.

There are several things lawmakers could do. One would be to change the legal standard for punitive damages to clear and convincing evidence instead of the preponderance of the evidence. Another start would be to put a cap on such damages. Or trials could be bifurcated so that the punitive aspect of the case is only considered after a jury has reached a verdict on compensatory damages. 

We think a better choice would be for lawmakers to realize the magnitude of the situation and join a handful of states and simply ban punitive damages in malpractice cases altogether. 

Such a scenario would still be fair to victims, who could be made whole and compensated for any harm they suffered through compensatory damages. 

The current system is out of whack. A New Mexico jury last year gave a punitive damage award of nearly $400 million in a malpractice case. A victim who suffered at the hands of a doctor should be given enough of an award to seek the treatment that they need to recover. 

New Mexico Safety Over Profit is leading the crusade against change. The group — funded primarily by in- and out-of-state plaintiff attorneys — says that New Mexico doesn't have a shortage of doctors, per se, but rather the state's health care system is hurting because of an over-reliance on corporate hospitals who put profits over patient safety. We've met with the group, and it appears their sole idea and focus is on maintaining the status quo. 

But the status quo is killing people and leaving us in pain. It's not a small problem that is affecting a few people. Have you tried to find a new primary care physician? How about schedule a mammogram or find a neurosurgeon, dermatologist or other specialist? If the process went smoothly for you, congratulations. You are one of the lucky ones. 

And the NMSOP argument that New Mexico has a lot of malpractice because health systems are putting their profits over people falls flat on its face when you meet with physician groups, who say that laws have made it financially impossible for doctors to work in small, private practices so they take jobs at large health systems to try to get some shield against frivolous lawsuits. 

We're glad to see that Presbyterian Healthcare Services has taken a stance and recently started running advertisements on TV, print and social media calling for malpractice reform. It's the largest health system in the state — and we should listen to them.

We need more doctors in this state. If prohibiting punitive damages makes it so victims of malpractice can't find a lawyer to sue then the Legislature can address the matter in a subsequent session. But first let's clamp the artery that's bleeding. Yes, a lot of plaintiff attorneys will be upset. That's fine. They can take their billboards and commercials elsewhere.