Sen. Linda López
Chair
Senate Health and Public Affairs Committee

By MARGARET O’HARA
The Santa Fe New Mexican

Why the wait?

Senate Bill 176, a major piece of medical malpractice legislation, was introduced just days after the start of this year’s legislation session.

And since the session’s start, New Mexico lawmakers from both parties have listed reforms to the medical malpractice system among their top priorities, framing the issue as a major step toward alleviating the state’s acute shortage of health care providers.

Though the proposal has garnered strong opposition from medical malpractice attorneys and some of their clients, SB 176 is backed by nonpartisan think tank Think New Mexico and co-sponsored by 24 lawmakers — a bipartisan group ranging from some of the most liberal members of the Legislature to its most conservative.

Nonetheless, the bill didn’t get its very first committee hearing until Wednesday, more than six weeks after its introduction.

Even then, members of the Senate Health and Public Affairs Committee only heard public comment on the proposal; they didn’t take a vote.

The reason for the delay depends on whom you ask. 

Sen. Linda López, an Albuquerque Democrat and chair of the Senate Health and Public Affairs Committee, said the committee is “working diligently” to move through its bills — but, she argued, it’s got “a large number of bills with serious ramifications for the health and well-being of New Mexicans” on every agenda.  

“Medical malpractice is an extremely complex matter needing thorough discussion, and I’m committed to seeing that it happens,” López said in a statement.

However, a bill sponsor, Sen. Martin Hickey — an Albuquerque Democrat, physician and longtime health care administrator — blamed the delay on the political influence of trial attorneys. 

Randi McGinn, a trial attorney for more than four decades and a member of the New Mexico Trial Lawyers Association, said that’s not true.

“We just don’t have that kind of power or influence over these legislators,” she said.

Granted, SB 176 seeks to resolve a massive issue: balancing cost constraints in the state’s health care system, said Sen. Pat Woods, another co-sponsor.

“Every one of us wants the best care possible. Regardless of our income or our ability to pay, we want the best care possible,” Woods said in an interview. “And let’s face it, that’s just damn near an impossibility.”

Love it or hate it — and there are many who love it and many who hate it — SB 176 is scheduled to go back before the Senate Health and Public Affairs Committee on Friday.

The delay has rendered the bill’s chances of passage slim, Hickey admitted. To do that, it will need to fly through three Senate committees and get approval of the full Senate before moving to the House to essentially repeat the process — all in just over a week.

“I certainly hope it’d pass, but this is the New Mexico Legislature. Nothing is predictable here,” Hickey said.

Bill’s potential effects 

Medical malpractice lawsuits provide injured patients and their loved ones with a civil remedy for their pain — through settlement dollars or jury awards — though, the process often requires the sufferers to go through years of legal battles in search of a resolution. 

Health care providers, meanwhile, say their medical malpractice insurance — which for higher-risk specialties like OB-GYNs can cost $100,000 or more in annual premiums — makes practicing in New Mexico financially challenging, if not impossible. 

When it comes to medical malpractice reform, two things are true at the same time, said Dr. Angelina Villas-Adams, a gastroenterologist and president of the New Mexico Medical Society.

“We are 100% in support of patients, and that includes patients that are harmed by medical malpractice,” Villas-Adams said. 

“And we have to also take into account the community of patients that seek care every day that are unable to seek care because there are no appointments or because their provider leaves before they even get to their appointment,” she added.

If passed, Senate Bill 176 would impose three key changes to the state’s malpractice system. 

First, it would cap attorneys’ fees, allowing lawyers to take at most a quarter of their client’s settlement money or a third of their client’s jury award.

Second, the bill would create a reimbursement system to cover injured patients’ medical expenses as they’re incurred, rather than a lump sum. 

Finally, SB 176 would siphon off 75% of any punitive damages to finance a new “patient safety improvement fund,” a pot of money intended to preempt medical malpractice through reducing staff-to-patient ratios, and improving training and equipment.

The remaining 25% of punitive damages would still go to the patient.

Attorneys, patients object

Though many health care providers — including the New Mexico Medical Society — have voiced support for SB 176, trial lawyers and some of their clients have major concerns about the proposal. 

McGinn argued SB 176’s changes would impede justice for malpractice patients. Cost-cutting measures in health care result in more incidents of medical malpractice, leading to more lawsuits and more big jury verdicts, she said. 

“People are outraged by the kind of medical care they’re getting, and jurors are outraged,” she said. 

Several injured patients shared their experiences during the Senate Health and Public Affairs Committee meeting Wednesday, telling lawmakers medical malpractice resulted in delayed diagnoses, paralysis, amputated limbs, malfunctioning organs, brain injuries and even death. 

“It seems to me that the legislators who are against this bill are on the right side of things because they should be supporting New Mexico patients and not the for-profit hospital corporations that have taken over medical care in New Mexico,” McGinn said.

Though trial attorneys are among the primary opponents of SB 176, McGinn reiterated the New Mexico Trial Lawyers Association didn’t have the power to halt the bill’s progress. 

“I think it is a difficult issue, but I don’t have a clue why it’s taken so long to come in front of the Legislature,” she said.

Hope and frustration

Fred Nathan, founder and executive director of Think New Mexico, said he still has hope for medical malpractice reform. 

“The tide is turning. The medical malpractice reform bill has two dozen bipartisan sponsors, more than any other bill this session,” Nathan said. “This is an indication that the Legislature is starting to take the issue very seriously, and I believe we will ultimately prevail.”

Whether they’ll prevail this year, Nathan said, is “unpredictable.” 

Rep. Gail Armstrong, R-Magdalena, another SB 176 co-sponsor, was harsh in her assessment of the bill’s lack of movement. 

“I can tell you exactly why: The governor doesn’t want to fix it. Some of the members don’t want to fix it,” she said.

The delays are adding to physicians’ frustrations, Villas-Adams said. 

Annie Jung, executive director of the New Mexico Medical Society, said she doesn’t know why SB 176 didn’t get a hearing for its first six weeks in the Legislature. 

But, she added, “For whatever reason, it has not been prioritized — and that in itself is frustrating because it needs to be a priority. Fixing our health care needs to be a priority.” 

“Realistically, we have a week left, and so we’re not optimistic that things are going to get done,” Jung said.