OPINION: Malpractice reform effort is driven by need, not fear

It was interesting — almost nostalgic — to read the op-ed by longtime lobbyists Randy Marshall and Peter Mallory (Feb. 1 Sunday Journal). Some of us remember those “good old days” of the good old boys who chatted over lunch about New Mexico’s legislative issues, including malpractice laws. They didn’t talk to patients or the public. That kind of lawmaking likely contributed not only to today’s health care crisis, but also to the very deal the authors now lament involving Superintendent James Franchini and the broken Patient Compensation Fund.

Honestly, I’d like the Grammys to still be about Neil Diamond’s "Song Sung Blue" and my personal favorite, Helen Reddy’s "I Am Woman, Hear Me Roar!," with artists fully clothed. But that’s not where we are today. Likewise, the op-ed does not accurately reflect the current malpractice debate.

Let’s face some facts.

The reference to “so-called” think tanks is language lifted directly from the trial lawyer defense of unlimited punitive damages. Feliz Rael, president of the New Mexico Trial Lawyers Association, used that exact phrase in a 2025 op-ed. The “so-called” think tank Marshall and Mallory are referring to is Think New Mexico. While I haven’t always agreed with all of its policy recommendations, many of its reports have supported meaningful change in our state.

Over its history, Think New Mexico has provided leadership and research on issues ranging from full-day kindergarten for every New Mexico child to repealing the regressive tax on food, ending predatory lending and stopping the double taxation of Social Security for low- and moderate-income New Mexicans. That is hardly the corporate agenda the op-ed alleges.

Think New Mexico provides research the Legislature often lacks the time, staff or expertise to conduct. Without that research, legislators have too often relied on well-paid lobbyists like Marshall and Mallory, who represent their clients’ interests — and their clients’ preferred set of “facts.” That reliance has helped get us where we are today.

And speaking of representing clients, the op-ed’s joint authorship raises questions. Who exactly was Randy Marshall representing during these negotiations — or was Mallory simply the better “negotiator?” Where were the doctors, or their representatives, over the years as multiple laws passed that favored trial lawyers?

HB 99, sponsored by Rep. Christine Chandler, D-Los Alamos, along with a bipartisan group of House members, addresses the initial revisions needed in our medical malpractice laws. It raises the standard of proof for punitive damages and caps what are currently unlimited punitive damages. Under current law, malpractice attorneys almost automatically file punitive damage claims, which they openly admit are intended to “hasten settlements.” In plain language, that tactic is designed to scare the dickens out of doctors — and everyone else named in a lawsuit. That environment makes recruiting and retaining physicians far more difficult.

While attacking money spent to reform malpractice laws, the authors also fail to mention the hundreds of thousands of dollars spent by the New Mexico Trial Lawyers and their ethically challenged dark-money PAC, New Mexico Safety Over Profit, to preserve the status quo.

In my own recent medical experience, I heard directly from a Colorado physician about New Mexico’s reputation as a hostile environment for doctors. The Legislature has taken a positive step by passing the medical licensure act and is moving forward on remaining compacts that could help recruit medical professionals. But as this physician noted, without malpractice reform, many won’t sign up — and others won’t stay.

The demand for change is not driven by fear or by think tanks. It is driven by patients across New Mexico who wait months to see a primary care doctor or specialist, or who must travel hours within or outside the state for care. This movement is driven by patients and the public — not the good old boys. And that’s exactly how it should be.

Diane Denish was the lieutenant governor of New Mexico from 2003 to 2011.