Former legislator misleads the public about medical malpractice reform

Damon Ely’s Op-ed in the Feb. 6 edition of the Bulletin mischaracterizes legislation currently being considered to reform New Mexico’s medical malpractice reform – and fails to disclose the role he played in shaping the current malpractice system.

Medical malpractice reform is one of the most important issues under debate this legislative session. A poll of 1,200 doctors by the New Mexico Legislative Finance Committee found that 65% of those currently practicing in New Mexico said they are actively considering leaving, and 83% of them say that the main reason is the state’s malpractice laws.

To address this crisis, Rep. Christine Chandler has introduced House Bill 99, joined by 26 bipartisan cosponsors. The bill includes several important reforms, but the debate has centered around one of them: caps on punitive damages in medical malpractice cases.

Punitive damages are intended to be imposed only in rare instances when it is necessary to punish intentional harm or extreme recklessness. The vast majority of malpractice cases do not rise to this level. Yet punitive damages are claimed in 92% of malpractice cases filed in New Mexico — a far higher rate than in other states.

The reason is that New Mexico has the lowest standard of proof for punitive damages and no limits on them. The majority of states require more proof to award punitive damages and either cap or ban them.

As introduced, House Bill 99 capped punitive damages for all providers in New Mexico at the same levels as the existing caps on compensatory damages: about $1 million for independent providers and mid-sized clinics and $6 million for hospitals.

However, in the House Health & Human Services Committee, the bill was amended in a way that would continue to expose all mid-sized practices in the state and all but five of the state’s hospitals to unlimited punitive damages. This is the version of the bill that Ely was urging legislators to support.

Ely falsely claimed that capping punitive damages for all providers in New Mexico would “grant corporate giants broad immunity.”

On the contrary, the cap proposed in House Bill 99 would strike an important balance between supporting our healthcare community in New Mexico and holding bad actors accountable when necessary. No one would be immune from lawsuits or punitive damages.

Ely’s false claim is unsurprising given his close ties to New Mexico Safety Over Profit, the formerly dark money front group for personal injury lawyers that has been advocating against meaningful medical malpractice reform in New Mexico.

Last year, the New Mexico State Ethics Commission sued NMSOP in a 73-page complaint for violating the lobbyist regulation act because they refused to reveal their contributors. After settling the case, NMSOP revealed that all of their donors were trial lawyers, trial lawyer law firms and employees, and the NM Trial Lawyer Association itself.

Ely neglected to mention that he is a personal injury attorney who serves as Secretary of the Board from NMSOP and that the organization’s listed address is his law office. He also failed to mention that he himself sponsored a bill while he was in the legislature that raised the caps on compensatory damages, leading to higher verdicts and more expensive malpractice insurance premiums for doctors and hospitals.

Fortunately, legislators on the House Judiciary Committee were not persuaded by Ely’s inflammatory rhetoric. They voted 10-0 to pass an updated version of House Bill 99 which continues to cap punitive damages for all health care providers, while allowing a higher cap for hospitals that are part of larger systems.

House Bill 99 now reflects a careful balance and smart compromise that provides flexibility to hold larger hospital systems accountable while protecting New Mexico’s smaller practices and providers. Please urge your legislators to support the House Judiciary Committee Substitute for House Bill 99.

Joanne E. Turnbull, PhD, Las Cruces, is the Executive Director Emerita, National Patient Safety Foundation and Co-Founder, Patients Primero.