By MERILEE DANNEMANN
Triple Spaced Again
© 2025 by Merilee Dannemann
The doctor is thinking seriously about leaving New Mexico. He is not willing to risk losing his home, his life savings, or everything else he owns.
He is an emergency room doctor. His wife is a family practice doctor.
He was talking about punitive damages in medical malpractice. Punitive damages are not routinely covered by malpractice insurance. In most cases the physician is personally liable. In other words, if a jury awards punitive damages, the physician could lose his house. This is not widely known by the public.
This conversation was at a legislative town hall that was supposed to be about malpractice. But the doctor was talking to me personally after the event, because the host had prohibited live questions from the floor. The host was Rep. Marianna Anaya, who is closely aligned with the trial lawyers’ lobby.
Punitive damages are only supposed to be applied in cases involving willful reckless disregard for the patient. But, according to another doctor at the same event—who had shouted out of order because Anaya was not accepting questions—the accusation of punitive damages is included in almost every malpractice case filed in New Mexico.
Outside of this event, someone who understands the system explained to me that this is how non-meritorious claims get settled out of court. The lawsuit is filed, the doctor sees the personal threat and is scared, and therefore the doctor or the doctor’s employer settles the case to avoid the punitive damages.
But the high price of these settlements is one of the factors driving malpractice insurance premiums up in New Mexico, which in turn is another factor leading doctors to leave the state. My consultant said punitive damages in medical malpractice are not covered by insurance in any state. This by itself is shocking, but apparently other states have found ways to make it much less threatening, such as reasonable limits on the amount of damages allowed and strict standards for what constitutes punitive damages.
Anaya said that just as doctors do everything they can for their patient, lawyers do everything they can for their client. So, she thinks punitive damages accusations are just fine. I think accusing doctors of reckless disregard for their patients’ wellbeing when that did not happen is reprehensible, even if the law allows it.
We know that the healthcare system has many other serious problems, but the shortage of physicians is a major crisis in New Mexico. Anaya was trying to say we can solve our shortage by doing other things, not fixing malpractice, but we can’t do any of it in the upcoming 30-day session because 30-day sessions are too short.
However, my understanding is legislation may be introduced in January to impose a reasonable cap on punitive damages and to redefine punitive damages to a higher standard of proof, as other states do.
In the 2025 session, a bill containing those elements (Senate Bill 176) was left without a hearing in its first committee for more than 40 days. That was a disgrace. Now here’s the part that is up to you, citizen/voter: trial lawyers are a necessary part of the legal system, but the trial lawyers lobby in New Mexico has become too rich and too powerful. If you care about this issue, you might want to contact your legislator, not waiting for January but now. Call your legislator at home. Ask if he or she is accepting campaign contributions from the trial lawyers and suggest that he or she give the money back. Then ask the legislator to support reasonable malpractice reform legislation. If enough of us do this, maybe we’ll all still have doctors next year.
Merilee Dannemann’s columns are posted at www.triplespacedagain.com. Comments are invited through the web site.