4 Investigates: Doctors warn malpractice changes could drive providers out of New Mexico

Barely a year after lawmakers slapped an emergency bandage on New Mexico’s revamped Medical Malpractice Act, doctors are again warning about a dire – if unintended – consequence.

At the start of 2024, the cap for awards in malpractice lawsuits against some outpatient facilities will rise from about $800,000 to $5 million. The doctors’ groups who own those health care facilities say insurance companies have already refused to cover them when the change takes place, forcing many to consider selling to large medical groups or investment companies or to close up shop.

In a state that is desperately short on doctors, the consequences could be severe.

“It is absolutely critical,” Dr. Gabrielle Adams told 4 Investigates earlier this month. “I don’t know what we’ll do if we don’t get a fix.”

Adams is part of the group of doctors who own Southwest Gastroenterology Associates. In addition to a clinic, the group’s Albuquerque building houses an endoscopy center. The facility offers colonoscopies, endoscopies and other procedures on an outpatient basis. The cost to patients, insurance companies, and government medical programs is usually less than what it would pay a hospital or hospital-owned outpatient facility. Doctors at such clinics also are paid less per procedure than they would be at a hospital. But as far as New Mexico’s law is concerned, caps for such facilities will rise to the same level as a hospital next year.

“There’s no insurer in the country that will provide insurance for us or for any independently owned outpatient care facility,” said Dr. Adams.

State Sen. Mark Moores, a Republican, has teamed with Sen. Martin Hickey – a physician and former CEO of Lovelace Health Systems – to introduce a bill that would block the coming malpractice cap increase for independently owned outpatient health facilities.

“It’s much cheaper to go to these outpatient facilities than it is to go to hospitals. It’s better care, it’s better access for New Mexicans, and yet they’re being treated as hospitals,” said Sen. Moores. “And that’s just not fair. We are going to lose these clinics in New Mexico unless we fix this medical malpractice issue.”

PATIENTS WORRY 

Sitting in the office of Dr. Lindsay Uribe, Lacy Turney said she made her appointment probably 8 months ago. She said the experience is typical in a state with overtaxed and overbooked doctors.

“I mean, I have a son. When he was in third grade he was having blackouts. It took me 9 months to get him to see a neurologist,” she said.

Turney’s family moved to New Mexico from Texas about 8 years ago. She’s not eager to go back, but said the difference in access to medical care in the two states is stark.

For her children, she said, “I never failed to see the same doctor on the same day for a sick visit. For nine years. Maybe if I called in the afternoon I would see them the next day, but always within 24 hours.”

The same visit in New Mexico has often taken more than a week.

“Sometimes I feel like you have to have an in, you have to know somebody to call and say, ‘My God, can you get me in? Let me in,’” said Kerry Harmon, a retired nurse who has had to leverage her connections to get timely access to care in her retirement.

STATEWIDE SHORTAGES 

The state’s Health Care Workforce report, compiled annually for the last decade, shows most New Mexico counties fall short of national benchmarks for health care providers in many categories. Those counties that fare better, like Bernalillo County, often end up serving much of the rest of the state.

“Because there’s no gastroenterology in Gallup, Grants, limited in Farmington,” said gastroenterologist Dr. L. Trent Taylor, ticking off cities where he has patients. “There’s none in Taos, I have multiple patients from Taos. There’s no GI in Raton, I have patients in Raton. There’s no GI in Silver City.”

Patients travel for hours to get about 25 minutes for a typical office visit. On a recent day, Dr. Taylor had nine patients scheduled in his morning – plus a tenth patient he agreed to work in as a favor to an existing patient.

“In my case, I’m overbooked every day for the foreseeable future,” he told 4 Investigates. The foreseeable future in his case stretches out to the beginning of July with zero openings in his schedule.

Taylor, who has worked as a doctor in California and Oregon, said he worries New Mexicans have gotten used to long waits for medical care. Without more doctors, there’s not much to be done, though, and high malpractice rates, low Medicaid reimbursements, and an uncommon gross receipts tax for medical visits have combined to make recruiting doctors to New Mexico a tough proposition.

“You do feel like you’re really helping people. But the barriers to doing that can be really frustrating,” he said.

A FAMILIAR PROBLEM

In 2021, the Legislature raise lawsuit caps in New Mexico’s Medical Malpractice Act. It had been years since the limits were updated and many lawmakers, advocates and attorneys worried patients had become too vulnerable to malpractice. But within months, some doctors working in hospitals announced they couldn’t find malpractice insurance because the law considered them “agents” of the hospitals they worked in and applied damage caps in the millions of dollars.

As lawmakers met to draw new political boundaries in a December 2021 special legislative session, Gov. Michelle Lujan Grisham added a fix to the new law to the agenda. The resulting bill redefined those doctors and pushed back increased malpractice caps until 2024.

Now, the deadline is rushing at doctors who have once more begun pleading for help at the Roundhouse.

New Mexico has a system of private malpractice insurance and a publicly managed patient compensation fund that has kept malpractice insurance costs down for years. But payments from the fund and changes in the new law have combined to make many experts worried about a system that shows signs of faltering.

In October 2021, the state’s insurance superintendent Russell Toal wrote in an order that the cost of participating in the compensation fund – which is designed to control malpractice insurance costs for health care providers – was growing so fast that doctors might leave the fund or even leave the state. Among his suggested changes to the revised malpractice law was permanently lowering the damage cap for independent outpatient care facilities.

THE PATH FORWARD

“Health care providers are under a lot of pressure right now,” said Rep. Reena Szczepanski. The Santa Fe Democrat said she supports increasing Medicaid payments, boosting loan repayment programs used to recruit younger doctors to the state and finding more tax credits for rural health care providers. But she’s not certain applying the same malpractice cap to individual doctors and outpatient facilities is fair.

“I do think that there is a real difference though, between a physician’s office and a health care facility,” she said.

Gov. Lujan Grisham’s office told 4 Investigates that the administration “is proactively working to find ways to support individual providers and independently owned group practices. These providers play a valuable part in our health care delivery system and it is essential that they’re able to find affordable insurance.”

A spokeswoman pointed to roughly $100 million dollars in the governor’s budget for increased Medicaid payments and a fund to pay back medical school loans for doctors practicing in New Mexico.

 Meanwhile, the Moores-Hickey bill in the Senate awaits its first committee hearing.