COMMENTARY:
It’s a national problem, but especially bad here. Reasons include our sparse population, the paucity of each year’s UNM Medical School graduates, the high number of hospitals here owned by private equity, our gross receipts tax, and our relatively high malpractice insurance rates. Too, many people here are on government insurance, which tends to reimburse providers at lower rates.
During 2019-2024, New Mexico was the only state with a net loss of physicians. All New Mexico counties but one are are classified as Health Professional Shortage Areas. Our doctors’ older average age means we’ll see higher retirement figures than most states.
I like Senator Bill Soules proposal to use a small amount of our permanent fund to increase residencies for doctors here. The feds fund those, but there aren’t enough. Many doctors stay where they did their residencies. In those years, one makes contacts and friends, finds the good tennis or poker games, or maybe marries someone local. But this would have no immediate impact.
In 48 states, a doctor isn’t required to charge patients gross receipts tax. Patients pay less and doctors have no irritating and time-consuming state GRT paperwork. This isn’t the major factor in doctors’ selections of states; but it’s an unnecessary burden, unfair to patients, and wholly in the state government’s hands.
Another obvious problem is our disproportionate number of private-equity-owned hospitals. Some physicians seek to escape corporate limits on the time they can spend with patients. Some have told me of hospital quality control being minimized. Prior research taught me that safety concerns and overall results decline when private equity takes over a hospital. New Mexico has the highest proportion of private equity-owned hospitals in the country at 38%, compared with a national average of 8%. One Albuquerque medical malpractice attorney, testified to a legislative committee hearing that medical negligence occurs more often in New Mexico because of this high number of private equity-owned hospitals. (I’m agree!) She suggested a Corporate Practice of Medicine statute guaranteeing providers more autonomy and requiring safe nurse-to-patient ratios.
The real tension is between folks who would end or cap punitive damages, or otherwise limit patient’s rights, so as to decrease the high malpractice insurance rates that contribute to physicians leaving and new physicians avoiding our state. (Even if reformers exaggerate this problem, as trial lawyers insist, it exists.) New Mexico has a very high number of such lawsuits, per capita. Some folks are suggesting draconian measures. Trial lawyers – for a mix of good and bad motives – are pushing back. Reformers wrongly demonize the trial lawyers; but trial lawyers are significant players in our state government, and they got on the wrong side of the Ethics Commission by trying to hide an advocacy group’s funding. I hate everyone, but have some suggestions.
I like the suggestion that we allow doctors to apologize and explain without having that hung around the doctor’s neck by plaintiff’s lawyer. When patients whose surgery has gone wrong feel unheard, or disrespected, that can encourage litigation and render it more bitter. Some bad results are not mistakes. If 1% of patients have some negative side effect, someone’s in that 1%. Doctors should be able to express sadness about what happened without having that used against them at trial.
This topic won’t fit in one column. My suggestions regarding litigation will appear next Sunday, in Part II.
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Part II
We should change the standard of proof required to get punitive damages. The tough criminal law standard is “beyond a reasonable doubt.” As juror, if you’re as sure of guilt as you would be to make a very important personal or professional decision, vote to convict.
For criminal grand juries, deciding whether to indict, it’s “more probable than not.” Most civil cases use “preponderance of the evidence.” As I’ve told juries, “If there’s ten pounds of evidence on each side of the balance, and a feather falls on the plaintiff’s side, you must find for plaintiff.” Another is “clear and convincing evidence.” That means being quite persuaded, based on the evidence, but without the level of certainty required to put someone in jail.
This heightened standard makes sense, because punitive damages are punishment (not just ordering defendant to compensate plaintiff for the damage defendant’s car did) but far short of jailing or killing someone. (Six states don’t even allow punitive damages in such cases.) Among the states that allow punitive damages, most use that standard. Why shouldn’t we? (Colorado uses the reasonable doubt standard for punitive damages!)
Changes to our Medical Review Commission could help. Not every state even has one. It should be mandatory in all medical malpractice cases – and have teeth. Essentially, an expert board of doctors, lawyers, and others votes on whether plaintiff’s case is viable. I know doctors where the vote was 6-0 that the claim was crap, but the plaintiff’s lawyers kept pushing it, hoping litigation costs and the threat of punitive damages and litigation costs would extort a settlement. (Note that these suits really hurt some doctors, not just financially.) Under California CCP §998, in any civil case, when one side makes a binding compromise offer or demand, citing §998, if the other side declines, and doesn’t get a better result at trial, that party has to defray the all the offering party’s costs and attorney’s fees after the spurned offer. That sure discourages frivolous litigation.
Trial lawyers will say that’ll also weed out a few suits by desperate folks, with devastating injuries, whose suits might look dubious to the experts but not to a jury. So, maybe tinker with my suggestion. Have a unanimous vote against the case trigger the provision; or, after a 0-6 vote, let the panel vote whether or not to impose the provision; or make the possibly frivolous litigant
(or attorney) pay half the other side’s fees thereafter, not the whole. Lawyers often say, “We have the American rule, not the British, where losing litigants pay the winners’ fees. The British system can prevent less wealthy people from bringing suit.” I like our system. But we have plenty of exceptions. This should be one. I’d argue that some trial attorneys abuse our system by using bogus claims to extort unduly rich settlements.
I would not cap awards. For one thing, the small number of doctors generating a disproportionate number of successful suits suggests leaving punitive damages uncapped. Because New Mexico's Medical Malpractice Act caps compensatory damages at $750,000, patients rely on punitive damages to force hospitals to take action against problem physicians. Further, the hospital might have been negligent in continuing to allow the physician to practice here. Let’s punish that.
My suggestions could be effective – and perhaps achievable.
Listen to Part II of Goodman's commentary here:
Peter Goodman's opinions are his own and do not necessarily reflect the views of KRWG Public Media or NMSU.