In 2005, when Gov. Michelle Lujan Grisham was the New Mexico Secretary of Health, the New Mexico Health Policy Commission and the New Mexico Insurance Division convened a â€œTask Force on Health Care Practitioner Liability Insurance.â€ The task force report presented in November of 2005 recommended â€œamending the New Mexico Medical Malpractice Act (MMA) of 1976.â€ That recommendation was not approved by some members of the task force and therefore was not implemented. There have been several major efforts since 2005 to amend the MMA; all have also failed.
The MMA was approved by the New Mexico Legislature and revised in 1992. There have been no changes since. The MMA is now threatened with extinction by a district court ruling that the limit is unconstitutional and by entities that would benefit from the MMAâ€™s demise. Without the protections of the MMA, New Mexico will most certainly lose health care providers who now rely on MMA protections.
Some substantiated facts supporting the urgency to revise the New Mexico MMA are:
1) New Mexico is the fifth-largest state in the U.S., yet the total number of physicians per population is only 1.69 per 1,000, with most located in New Mexicoâ€™s larger Rio Grande Valley cities.
2) The original MMA and its only revision included only eight categories of health care providers eligible for the provisions of the MMA, and has not changed since 1976. Advance practice nurses are doctorate- or masterâ€™s-level registered nurses and include: certified nurse practitioners, clinical nurse specialists and certified nurse midwives; none are eligible or named in the MMA or protected by the MMAâ€™s provisions. These health care providers, as well as other primary care providers, need to be included in the MMA because their medical liability risks are comparable to primary care physicians.
3) Of the numerous convincing arguments for the need for tort limitations for the medical professions, the strongest is that although 96% of medical malpractice claims settle for $1 million or less, the remaining 4% represent 60% of all dollars paid to plaintiffs. Also, the severity of medical liability claims is increasing about 5% every year, according to Zurichâ€™s 2018 Benchmark report.
4) New Mexico health care providers not included in the definitions of the MMA and not protected by the provisions of the MMA are experiencing uncontrolled and escalating increases in medical professional liability insurance premiums.
5) Health care providers not protected under the MMA have unlimited liability and have become â€œdeep pocketsâ€ when a malpractice claim includes both MMA insureds and non-MMA insureds.
6) The tort limit of $600,000 has become vulnerable to unconstitutionality findings by the courts, and needs to be increased and include a cost-of-living-increase provision.
To ensure a revised MMA statute is fair and reasonable, the task force should include stakeholders from health care associations and other health care entities, as deemed necessary by a majority of the task force members.
The office of the Superintendent of Insurance should convene a Superintendentâ€™s Task Force to study all matters pertaining to the New Mexico MMA, and to ensure all health care providers and hospitals and their legal entities have access to affordable medical professional liability insurance.