BY REP, CHRISTINE CHANDLER
D-Los Alamos
Chair of the House Judiciary Committee

Healthcare access is top of mind for everyone in New Mexico, rightfully so, as we see more and more doctors leave the state to practice elsewhere. There are many reasons for this exodus. All of these reasons need to be addressed, including (especially) the unbounded litigation environment created by New Mexico’s Medical Malpractice Act.

Bills implementing the medical compacts, expanding the medical school, ramping up recruitment with a generous loan repayment program, increasing residencies, enacting an Apology Law, and the list goes on, are all in the hopper. But these changes will have only a marginal effect unless we add balance to our Medical Malpractice Act. We must shake New Mexico’s nationwide reputation as one of the worst places to practice medicine because of the fear that a lawsuit could derail a provider’s life or career.

After taking a deep dive into medical malpractice these last several months, looking at blue states with similar values to ours, I concluded that our litigation environment is out of alignment with similar states. New Mexico’s malpractice system is truly the wild, wild West.

Medical malpractice laws provide compensation to patients injured through medical error. Typically, the injured patient hires an attorney who sues a hospital, a doctor or other medical professional. A jury determines if there is a factual basis for the claim and may award compensation for “damages,” including medical expenses, loss of wages, pain and suffering, or other expenses arising from the injury.

In addition to monetary damages, requests for punitive damages are routinely sought against doctors and hospitals. Many states “cap” both monetary and punitive damage awards. However, New Mexico only limits monetary damages and allows punitive damages awards to be essentially unchecked.

What did I learn and what have I concluded? Briefly:

• Our monetary caps are higher, especially for hospitals, than both California and Colorado. Colorado’s non-economic damages cap is currently $810,000 for death cases, lower for injuries. Colorado does not distinguish between hospitals and independent providers. New Mexico’s monetary caps are currently at about $900,000 for doctors and $6,000,000 for hospitals.

• Colorado’s punitive damage limits are the same as its non-economic damage limits ($810,000) and the basis for the award must be shown with the highest standard of proof, beyond a reasonable doubt. New Mexico has no cap on punitive damages, and it applies the lowest standard of proof.

• In Colorado, a judge can allow punitive damages to be included in a complaint, only after discovery has been completed. In New Mexico, punitive damages are routinely included in a malpractice complaint against both doctors and hospitals before any discovery is done.

Much could be done to improve our medical practice litigation environments, but the most important is getting a handle on punitive damage awards. HB 99 is a bipartisan proposal that ensures fair compensation to victims, while placing checks on runaway awards – it creates caps on punitive damages that are tied to other caps already in place, and it raises the standard of proof to “clear and convincing evidence,” the mid-level in the legal hierarchy.

I am sponsoring HB 99 alongside legislators from both parties and both chambers who hold diverse political philosophies: progressives, moderates and conservatives. The list of sponsors and co-sponsors on this bill is a testament to its balanced and fair approach.

To solve New Mexico’s doctor shortage, we must entice more medical professionals by providing a more competitive and amenable practice environment. It won’t happen overnight. But it won’t happen at all unless we send a clear and decisive message: healthcare providers – you are welcome here.