OPINION: Medical malpractice costs drive the doctor shortage

Trial lawyer Ben Davis’s recent column, “The real root of NM’s doctor shortage,” attempted to deny the role that New Mexico’s medical malpractice environment is playing in driving the state’s worsening doctor shortage.

This is the continuation of a pattern, as earlier this year Davis was revealed to have donated $15,000 to the dark money group New Mexico Safety Over Profit (NMSOP). NMSOP published a report riddled with false statements, similarly attempting to deflect blame for the doctor shortage away from the state’s malpractice laws. NMSOP adamantly refused to reveal its funders — until the New Mexico Ethics Commission filed a 73-page lawsuit against it. In response, NMSOP paid the maximum fine and disclosed its donors.

While NMSOP claimed on its website to be “a network of individuals and families harmed by big corporations, institutions and profit-driven systems,” in actuality all of its donations came from trial lawyers and their firms, including Davis.

It is understandable that the trial lawyers who make money suing health care providers do not want lawmakers to reform those laws. However, we will not be able to effectively address New Mexico’s health care provider shortage until we face facts about the underlying causes of the problem.

First, while there is a national doctor shortage, the data shows that it is markedly worse in New Mexico. When we look at physicians who are actively practicing — as opposed to those who hold licenses but do not practice — the number of active doctors in New Mexico is well below the national average, according to data from the federal Health Resources & Services Administration.

A national study found that between 2019-2024, New Mexico lost 8.1% of our doctor workforce (248), while the number of doctors nationally increased by 7.3% (44,272). New Mexico also has the oldest physician workforce in the nation, with 37% of physicians projected to retire by 2030.

Given that there is a nationwide shortage, and that New Mexico’s situation is particularly dire, our state should be enacting a wide range of policies to make the state more attractive to physicians who can easily find work anywhere. For example, we need to join interstate licensure compacts, continue to increase Medicaid reimbursement rates, repeal the state tax on medical services and expand student loan repayment for health care professionals.

However, we can’t ignore the essential role of the medical malpractice environment in driving the shortage.

Medical malpractice premiums in New Mexico are dramatically more expensive than in other states. A general surgeon in New Mexico, for example, pays an average of $87,011 annually for malpractice insurance. Meanwhile, the average cost of that same insurance in Colorado is $36,164, and in California is $29,860.

This disparity holds true across different regions, specialties and insurance types, including for providers who do not participate in New Mexico’s Patient Compensation Fund (PCF) (undermining Davis’s argument that the PCF hospital surcharge is entirely responsible for high premiums in our state).

Premiums cost more in New Mexico because there are more malpractice lawsuits and more high payouts than in other states, according to data from the National Practitioner Data Bank.

These numbers are the result of policy choices: New Mexico is an outlier on many aspects of our medical malpractice law. For example, 33 states require lawyers to meet a higher burden of proof before punitive damages can be awarded; 27 states limit punitive damages; and 31 states restrict venue shopping.

We urge New Mexico lawmakers to follow the example of other blue states like California and Colorado that have enacted reforms like capping attorney’s fees, raising the burden of proof for punitive damages and ending venue shopping. To learn more about these solutions, and to contact your legislators and ask for their support, visit www.thinknewmexico.org.

Lauren Leland is a health policy fellow with Think New Mexico.