OPINION: Punitive damage threats don't improve health care

Earlier this week, I received an email from a physician recruiter with details of a job in Arizona. I often receive five or more similar messages per week, but the subject line of this one caught my attention: “A Strategic Move for a New Mexico OBGYN.” I’m a physician who was born, raised and trained in the Land of Enchantment and who has practiced in rural New Mexico for nearly a decade. I already bristle at the frequent recruitment offers to leave my home state, but to have moving away from New Mexico be explicitly referred to as “strategic” made my heart sink. I know many doctors who’ve left family, friends and the world’s best green chile for jobs in other states, and others who would love to move home but feel like New Mexico has become too hostile toward physicians.

There are huge problems with the health care system in this country, but the situation in New Mexico is especially dire. We contrast starkly with our neighboring states as one particularly unfriendly to health care providers because of our medical malpractice laws. As a result, New Mexicans suffer from a severe lack of access to everything from primary to specialty care. Some argue that our current laws are necessary to keep New Mexicans safe — I routinely see them do the opposite. 

These laws have created a climate in which my friends and colleagues have fled the state, at what feels like an exponential rate. Often, they move to a neighboring state with similar culture or climate but very different medical malpractice laws. Medical students and residents say they are scared to stay in New Mexico after completing their training. Across the state, OB-GYN and midwifery practices have cut services or closed altogether. Rural hospitals — which not only serve but often employ a large proportion of their community — are on the brink of closure due to staffing shortages and skyrocketing malpractice insurance rates. Many have already shuttered their labor and delivery units, forcing women to drive long distances or forgo prenatal care entirely. Being unable to access timely medical care can be devastating or even deadly. 

When something goes wrong with the care of a patient, it is a heartbreaking event for all involved. Sometimes, medical tragedies are nobody’s fault — the unfortunate truth of our fragile human condition. In other circumstances, a medical error or a breakdown in the system of care causes harm to a patient. Having spent years learning to provide compassionate, high-quality health care in my beloved state, seeing a neighbor suffer avoidable injury is a crushing experience. In such cases, patients deserve to be fairly compensated and made whole. We must also analyze and learn from the error, with the goal of improving care for all New Mexicans and protecting them from similar errors.

Unfortunately, the system in New Mexico is not working this way. Routinely, physicians face the threat of uncapped punitive damages awarded without meeting the legal standard required in states like Colorado. Punitive damages, often millions of dollars, are intended for cases of flagrant neglect, in addition to damages awarded to make the patient whole. Wonderful physicians are being accused of malicious harm when they make an honest mistake, a mistake they already feel terrible about. Such enormous financial punishment does not improve health care or make the system safer; rarely does fear improve performance. Rather, such fear leads providers to order extra tests or perform unnecessary interventions, going against best practices in an attempt to avoid litigation. Worse, this fear leads to more doctors making the “strategic” decision to say adiós to New Mexico altogether. 

Megan Henrie, MD, is the New Mexico officer for the American College of Obstetrics and Gynecology.