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Senate passes bipartisan bill to address medical malpractice payout caps

Jun 13, 2023Jun 13, 2023

Joe Gratz


By Daniel J. Chacón, The Santa Fe New Mexican

With less than 72 hours left in the 60-day legislative session, the Senate passed a bipartisan bill Wednesday designed to address concerns over looming changes to New Mexico’s medical malpractice law, which doctors and other providers have been pleading with lawmakers to resolve for weeks.

Senate Majority Leader Peter Wirth of Santa Fe described Senate Bill 523 as a hard-fought compromise between the New Mexico Medical Society and the New Mexico Trial Lawyers Association that will allow independent clinics to obtain medical malpractice insurance.

“It took everything we had over the last three weeks to get these parties to the point where they could settle,” Wirth said.

“Am I frustrated that it happened in the last three days? Yeah, because it puts us in a place where we do have to expedite this,” he added.

The measure, which the Senate approved 40-2 after a two-hour debate, will be considered next by the House of Representatives, where the sponsors are House Speaker Javier Martínez of Albuquerque and Minority Leader Ryan Lane of Aztec.

Under the compromise, which Gov. Michelle Lujan Grisham helped broker, caps on medical malpractice payouts for independent outpatient clinics, now set at $750,000, would rise to $1 million. Changes the Legislature made to the Medical Malpractice Act in 2021 swept independent clinics into the same category as hospitals and would have raised their caps to $6 million by 2027, which doctors and other providers said had left them unable to obtain insurance.

Lawmakers have been under pressure to come up with a solution as New Mexico struggles with a shortage of doctors, a problem some fear will be exacerbated unless the state sets lower caps for independent outpatient health care facilities that are not majority-owned by a hospital.

The last-minute save did not come without pushback.

Sen. Joe Cervantes, D-Las Cruces, said the bill deliberately skirted the Senate Judiciary Committee, which he chairs, and wasn’t properly vetted.

“It went to the Senate tax committee, and let’s be honest, there’s nothing in this bill about taxes — nothing whatsoever,” he said. “Is that really where the bill belongs? No. But we should know that the negotiation this time was specifically not to send it to the Senate Judiciary Committee because they knew [the committee] might ask some questions and might get answers that folks don’t like.”

When the Legislature changed the law two years ago, the first time it had been “substantially modified” since 1992, Cervantes said his committee received a referral but was instructed to take a hands-off approach.

“Those of us on the Senate Judiciary Committee were told we could not touch one period, not one word of that 2021 bill because it had all been worked out, that all the negotiations had been so delicate, that all the concessions had been so perfectly done, the bill was perfect and that the Senate Judiciary Committee could not dare to even think about touching that bill,” he said.

In a special session months later to deal with redistricting, the medical malpractice law had to be changed again.

“I know the governor and others have been working hard, but this bill got rolled out yesterday for the first time,” he said.

Sen. Daniel Ivey-Soto, D-Albuquerque, who also serves on the Senate Judiciary Committee, said the Legislature needed to intervene, but he echoed Cervantes’ concerns. Although he ended up voting in support of the bill, he said during the debate he was undecided.

“That is in no way to disparage the work that’s been done by the leaders [of the Senate],” he said. “But it is recognition of the fact that we have deprived ourselves of our collective wisdom in this chamber.”

Cervantes, an attorney who handles medical malpractice cases, warned it was only a matter of time before the law would need to be reexamined.

“This bill creates its own ambiguities and inconsistencies and problems, and this perfect [bipartisan bill], which we’ll congratulate ourselves for and we’ll slap ourselves on the back and we’ll say it was the grand compromise, I’m telling you all right now, we’ll be right back here again,” he said.

While presenting the bill, Wirth called the compromise a “long-term solution.”

Senate Minority Leader Greg Baca of Belen said the bill, which he sponsored in the Senate with Wirth, is the result of “many long hours of negotiation” with doctors, trial attorneys and others.

The bill is a “compromise that is best suited to fit both patients who have been injured, as well as the people in New Mexico seeking medical services,” he said.

Sen. Ron Griggs, R-Alamogordo, thanked Wirth and Baca for their work in bringing a fix forward.

“This is a major problem for our state and so the fact that we’re able to come together as we have and find a solution at all is pretty amazing,” he said.

Follow Daniel J. Chacón on Twitter @danieljchacon.

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By Daniel J. Chacón, The Santa Fe New Mexican