NM's thorny medical malpractice system

“I was committed to the people of New Mexico,” she said. “I’m Hispanic. I speak the language. I know the culture. That was the whole reason I went into medicine.”

But Vigil said her choice to practice in New Mexico came at a cost — specifically the high cost of medical malpractice insurance in the state, which regularly runs OB-GYNs like Vigil more than $100,000 per year in premiums.

For Vigil, that cost ended up being too high.

“To remain as a solo practitioner, independent, paying all of my expenses or my bills — no,” she said.

It didn’t make financial sense, and it didn’t seem like things were going to change.

Vigil retired in July 2023 at age 65, though she estimated she had at least five more years in her.

Nobody is entirely happy with New Mexico’s medical malpractice system. Doctors like Vigil say the high price of malpractice insurance is making it impossible to practice in the state while injured patients endure years of legal battles without ever really being made whole.

This year, lawmakers are proposing a bill to reform medical malpractice in New Mexico. If passed, Senate Bill 176 would make three major alterations to the state’s medical malpractice cases: It would impose a cap on attorneys’ fees, disburse funds for future medical costs through a pay-as-you-go model and reinvest certain damages to improve health care quality and safety.

The bill is sponsored by Sen. Martin Hickey, an Albuquerque Democrat, physician and longtime health care administrator, and backed by nonpartisan think tank Think New Mexico.

“The reason we’re focused on this medical malpractice bill is we hope ... to change the medical malpractice system from a lawyer-centered system to a patient- and safety-centered system,” said Fred Nathan, founder and executive director of Think New Mexico.

He added, “We believe this bill will help New Mexico to retain the doctors we already have and make it easier to attract new ones.”

The proposal won’t go through without a fight. Trial lawyers in particular are hesitant about SB 176’s proposed changes, arguing lawmakers should prioritize public policy solutions — like setting safe staffing requirements, student loan debt repayment programs and changing tax and reimbursement rates on medical services — to prevent medical malpractice from happening in the first place.

“Don’t let it get to the process of the patient being harmed. Let’s stop it at the beginning of this process to prevent the harm itself,” said Cid Lopez, an Albuquerque attorney who specializes in medical malpractice cases and member of the New Mexico Trial Lawyers Association.

Big mistakes by medical providers

Nearly 11 years ago, Ezra Spitzer — an Albuquerque resident about to become the father of twin girls — went to the hospital expecting everything to be fine.

Though one of the girls was feet-first in the womb, Spitzer said doctors had assured him and his wife the breech baby could nonetheless be delivered naturally; a cesarean section wouldn’t be necessary.

The first twin was born uneventfully. But after her birth, the doctor spent more than an hour attempting to deliver the couple’s second daughter.

His wife sustained significant injuries, Spitzer said. And after being asphyxiated in the womb, his daughter, Effie, died at just 1 week old.

“That’s what people need to understand: Behind every lawsuit is just horrible, horrible loss that is really impossible to recover from,” Spitzer said.

Medical malpractice cases like the Spitzers’ task the court system with answering impossible questions: How much money would cover the patient’s lost wages? What about future medical expenses? And what is the plaintiff’s loss — loss of enjoyment, loss of an organ, loss of a child — worth?

In New Mexico, some of those answers exist in statute, Lopez explained.

Since the 1970s, the state has had caps on compensatory damages, or monetary compensation equivalent to the harm the plaintiff suffered, like the recovery of lost wages after an injury stops them from working.

No such cap exists in New Mexico for punitive damages, which are intended to serve as punishment for egregious behavior.

When his family left the hospital after his daughters’ birth, Spitzer got hit with a bill totaling close to $250,000.

He hired an attorney and set off toward litigation, in hopes of achieving some kind of guarantee that what happened to his family wouldn’t happen to another.

“No one gives you any assurances that they learned anything from what happened to you, and so you want to seek some sort of justice,” he said.

The case ultimately ended in a settlement — after seven years of dealing with a “terrible” court system, Spitzer said.

“I think just a lot of work is done to kind of drag on a case, to see if they can wear you down as a human, wear you down as a person,” he said.

Big challenges for independent practices

Vigil, the now-retired Santa Fe OB-GYN, never learned to run a business in medical school.

“We’re not taught to run a business; we’re taught to become medical doctors,” she said.

But then she became a doctor — and found herself running a business.

Vigil said she had become business-savvy for her practice to survive. She had to learn to keep track of the practice’s finances, pay her bills and monitor reimbursement rates from private insurers, Medicare and Medicaid.

Medical malpractice insurance — which doctors carry to ensure they’re covered in case of a claim against them — adds to independent practitioners’ overhead costs.

Much like car insurance, the cost of medical malpractice insurance is based on the proverbial driver’s record. Rates are determined by the doctor’s speciality and history of past claims, said Nick Autio, general counsel for the New Mexico Medical Society.

For OB-GYNs, whose jobs regularly involve high levels of risk, malpractice insurance premiums often cost between $105,000 to $115,000 per year, Autio said. That’s compared to policies half as expensive — ranging from $40,000 to $55,000 — in surrounding states.

This article was first published in The Santa Fe New Mexican, the sister paper of the Taos News.