Gabrielle M. Adams, M.D.
By ROBERT NOTT and DANIEL J. CHACÓN
The Santa Fe New Mexican
Clad in her white medical coat, Dr. Gabrielle Adams moved through the halls of the state Capitol, hoping to talk to any lawmaker she could find.
“I’ve been walking around trying to grab people,” said Adams, president of Albuquerque-based Southwest Gastroenterology.
Her goal was to persuade lawmakers to approve a bill that would cap medical malpractice payouts at $750,000 for independent outpatient health care facilities that are not majority-owned by a hospital.
If Senate Bill 296 fails, several providers will find themselves looking for insurance to cover medical malpractice caps of $6 million by 2027 — the rate for hospitals.
The Legislature passed an update to the state’s Medical Malpractice Act in 2021, raising the caps for payouts in civil claims in a phased-in process over several years and sweeping some independent outpatient clinics into the hospital category, a move that has faced criticism from lawmakers and health care advocates.
Adams said the change might mean practices go uninsured or out of business.
The bill’s fiscal impact report says, “The New Mexico Medical Society notes there are over 450 licensed outpatient healthcare facilities in New Mexico, which includes government-run, hospital-owned, and independently owned facilities.”
Annie Jung, executive of the New Mexico Medical Society, said 11 of those facilities would be affected by the law change.
“But they serve thousands,” she said.
Some lawmakers, mostly Republicans, have been calling on their colleagues to revisit the change this year, blaming the higher caps for exacerbating New Mexico’s shortage of health care providers.
SB 296, which has one Democratic and one Republican sponsor, could face hurdles. The House Health and Human Services Committee tabled a companion bill, House Bill 88, on a 7-3 party-line vote a week ago.
Rep. Elizabeth “Liz” Thomson, D-Albuquerque, said New Mexico was losing health care providers before the malpractice cap increases. There are many reasons for the shortages, but “medical malpractice, I don’t believe is a major one,” she said.
Meanwhile, there are behind-the-scenes talks about how to improve SB 296. Sen. Mark Moores, R-Albuquerque, a sponsor of the bill, said in an interview Saturday legislators are meeting with trial attorneys, members of Gov. Michelle Lujan Grisham’s administration and Democratic senators to come up with a bill acceptable to all sides.
“Hopefully we’ll see some action on it next week,” Moores said, adding if Democrats don’t get on board to do something about the issue, “they own the problem”.
He said a “quirk in the law” put independent outpatient clinics in the same league as hospitals when it comes to medical malpractice payout caps.
He joked that if clinics do close and doctors leave the state, malpractice lawyers “will have nobody left to sue.”
Providers, lawyers, patients weighing in
At the very least, providers’ insurance premiums are going to increase if their malpractice caps aren’t lowered, Adams said. At worst, the facilities will be unable to find an insurance carrier. She said her clinic has been looking for insurance coverage for the $6 million cap without success.
In a state struggling with a provider shortage, that leaves clinics with two choices, Adams said: operate underinsured or “close our doors. Some of us retire, some of us move away, some of us go to work for Presbyterian or something like that.”
Lobbyists, lawyers and patients involved in medical malpractice cases also have been talking to lawmakers about SB 296, arguing it unfairly eliminates a patent’s ability to pursue higher-cost claims for malpractice that has inflicted severe emotional, mental and physical damage.
Dr. Jeff Greene — he says the “Dr.” is just a formality now that he no longer practices dentistry — is a tall, imposing figure in his late 40s with one eye disfigured.
He said a laser surgery in 2016 went wrong, leading to a tear into his retina and severe nerve damage. After years of follow-up eye surgeries, an eye expert recommended removing the eye, so “that’s what I did,” he said. “I’m out of pain but don’t have the necessary depth perception to continue in dentistry.”
He tried to keep practicing in Albuquerque for a few years, until one day when a bit of the root tip broke off a teen patient’s tooth. Greene struggled to deal with it.
“I knew what I was doing to that patient was hurting,” he said. “My own limitation had a negative effect on that patient and I vowed I could not be that kind of doctor. For [the patients’] own safety, I had to step away.”
Greene sued and got what he said was less than the sum total of what he earned a year as a dentist.
“I still have significant student loan debt, a family … all the hard work I went through to become a doctor was snatched away from me,” he said. “I was given a one-year severance package and an apology that ‘we messed up your life.’”
Now, he’s studying to be a lawyer and lobbying against SB 296, arguing a $750,000 cap is unfair to patients who lose limbs, eyes, lives — or a little bit of who they used to be.
He doesn’t buy the argument insurance companies will not provide $6 million insurance policies, and he doesn’t for a minute believe another argument proponents of SB 296 are making: that health care professionals are leaving the state in droves because of the high medical malpractice caps.
Are malpractice caps to blame for shortage?
New Mexico lacks medical professionals in many critical areas. A legislative report released in summer 2021 cited numerous gaps: 328 primary care doctors, 238 certified nurse practitioners, 249 physician assistants, 524 physical therapists, 2,510 emergency medical technicians, 521 pharmacists and 117 psychiatrists.
The New Mexico Health Care Workforce Report shows that between 2013 and 2021, the number of primary care doctors practicing in the state dropped from 1,957 to 1,607.
Do medical malpractice caps play any role in the shortage? Health care officials say yes; patients and lawyers say no.
Those advocating for SB 296 say the higher malpractice cap will lead health care officials to pack up and move out of the state or close down.
Christus St. Vincent Regional Medical Center will not be affected by any rise in caps beyond the $6 million it now faces, but Dr. Theresa Ronan said she is concerned for patients who will lose access to regional outpatient health care facilities if some shut down. She worries the current law will lead to few insurance companies being willing to insure the smaller operators.
“The result is perhaps thousands of patients could lose access to medical care,” she said. “New Mexico is already short-staffed. … Any closure is catastrophic for patients. Where would they go?”
Nick Autio, general counsel for the New Mexico Medical Society, agrees. He, too, said there are few if any insurers ready to take on the risk of insuring small, independent outpatient health care facilities, and he believes medical malpractice rates play a “big role” in the state’s health care shortage.
Medical malpractice rates are “definitely a driving force in the exodus,” he said.
Zackeree Kelin, an Albuquerque-based lawyer whose practice handles a lot of medical malpractice cases, argued there is no proof or study showing medical malpractice rates lead to provider shutdowns or exits.
“I don’t know where they connect those dots of saying providers are leaving because of medical malpractice insurance rates or their ability to get insurance coverage,” he said.
Nor has he seen any data suggesting providers cannot find insurance carriers just because rates are going up, he said. Noting about half the states in the nation have no medical malpractice caps, Kelin said providers there must have no trouble finding” insurance.
Citing neighboring Arizona, home to the Mayo Clinic, Kelin said, “No one would claim there is a massive insurance problem there or doctors are leaving the state because of this — because they don’t have a medical malpractice cap.”
While New Mexico clearly faces a health care worker shortage, he said, he believes studies on declining numbers do not take into account physicians who simply quit practicing even if their licenses were still valid.
It’s hard to truly examine or interpret the impact of higher medical malpractice rates without knowing the profit or loss scale of any health care facility, he added.
“I think there is a sense for all professionals their premiums are too high,” Kelin said. “So, ‘too high’ is really in the eye of the beholder.”