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Today on physicians taking back medicine, you'll meet two physicians who are fighting for malpractice reform in their state of New Mexico. My name is Aaron Snyder. I am a board certified practicing emergency medicine physician in Albuquerque, New Mexico, from 2017 to 2024
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between two and 300 physicians left the state as a net negative, as the only state in the country that actually had a net loss during that period. And so the question is, well, why is New Mexico losing physicians at a faster clip than it can bring physicians in when there was a net positive of 44,000 physicians over the same period across the country? And part of that has to do with medical legal risk of practicing in New Mexico. I'm Imani jambakar. I'm a surgical oncologist, and I practiced in New Mexico for about two years before deciding that I needed to find an environment that was more inclusive for for me and for my patients, not so much that I was worried about how malpractice would potentially impact me, or that I felt like I was at risk for litigation, but really as it related to plastic surgery as a specialty. So this was something that I noticed almost immediately upon moving to the state, and I wrote op eds about it. I posted a lot about it. I went to the Capitol last year to advocate. The problem with the malpractice situation is that it did not incentivize anyone who was in private practice to come into the state, and that's a lot of plastic surgeons in the two years that I was practicing there, I only saw plastic surgeons leave. I didn't actually see any healthcare system in the entire state successfully recruit plastic surgeons, and every healthcare system in the state was looking and so what ended up happening was, for me, as a surgeon who treats patients with breast cancer, my patients were having to drive like 250, miles to El Paso, to further than that to try to get reconstructive care in New Mexico, the problem is that you don't have very many plastic surgeons who can offer all of those services, and then the ones who can offer those services are so backed up with patients because there aren't enough plastic surgeons who are Doing reconstructive surgery. That was the first time where I was having to have conversations with patients that were like, you basically can only have the same options that people in other states have if you're willing to leave the state and you're able to get the finances to go and stay somewhere else, because a lot of that doesn't get covered by insurance. The environment there was very, very challenging because of these limitations. Here's Dr Aaron Snyder to explain a little more about the state of malpractice in New Mexico. The medical malpractice Act was passed in the 1970s
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to help stabilize the insurance industry. At the time, the state created something called the patient compensation fund that insurers had to pay into. So the liability insurance company covers the first quarter million, and then the patient compensation fund covers the other half a million, and that includes economic damages and non economic damages, punitive damages is the images is the liability of the individual, and it is not covered under medical malpractice insurance generally, ever. Let's say that the physician was found to have wantonly disregarded the care of the patient, some sort of negligence, malfeasance, just blatantly tried to harm the patient or tried not to help the patient, so then you could be found for a punitive damage. And punitive damages had no caps, so you could be hit with a personal liability. This was fairly rare from 1974 up until 2021 when the legislation made changes to the medical malpractice act for punitive damage is that there's three definitions. There's preponderance of evidence, and that just means that 50% plus one think that something happened, that the physician was causing wanton disregard or malice. The next is clear and convincing evidence that's like the 90 95% like this is pretty obviously somebody did something like wrong on purpose, or just wasn't taking care of this patient. And then there's the criminal standard, that's like 100% so the majority of states have the clear and convincing evidence standard. New Mexico is one of one or two or three that has the.
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A preponderance of evidence. So in 2021 the legislature decided to change the definitions, which became more encompassing of who could be sued. The law is sponsored by a medical malpractice trial attorney. There's several of them in the legislature currently that have made this very difficult to get changed. They raised the caps, and they left the ability to have these unlimited punitive damages. They lumped in outpatient organizations such as like a GI group or a primary care office as the same as a hospital, and lumping them under the same category made their insurance premiums the same as a multi billion dollar hospital system. The insurance companies obviously found out about this because they're going to have to change the way that they insure these private groups. The malpractice insurance premium was going to be so high that the insurance company just told the groups that they wouldn't insure them at all. The legislators didn't believe them. They thought that they were just blowing smoke, and like trying to just get them to change the law. Specifically, a Gi Group here in New Mexico, they do about a quarter of the state's colonoscopies. Here in Albuquerque, they provide a huge service to the state. Their insurance company said that they weren't going to cover them for any dollar amount. There was no premium could cover their costs. The legislators didn't believe them, and they actually had to have a three way phone call with the insurance company. The legislators and the physicians and the insurance company had to tell the legislators like, we will not insure them unless you change this law. And they still didn't believe it. So the last week of December, they had to have a special session because they had to carve out independent practices from this, like mandate, that way they would be able to turn the lights on January one. So that was like very beginning of this slow, downhill fall that New Mexico has taken two legislative sessions between then and now. They redefined these independent groups as the third category, just exclude them from the hospital category and to kind of fix it, but it didn't really fix anything, because punitive damages is still uncapped. The rule here is that they can bring punitive damages as a case before talking to a judge. They file their medical malpractice case and they can file the punitive damages case at the same time, and they essentially force settlements to cases that would probably be able to be defensible, except for the fact that if you had to roll the dice for punitive damages, you would be willing to settle because you just don't want to take the chance. And the reason for that is because punitive damages here is held to that preponderance of evidence, so 50% plus one, and then people always say, Well, what is punitive damages? If you actually dig into the statutes for New Mexico about what is protected, your house is protected up to $300,000
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which
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back in like 1970 that was considered reasonable, but I'd have to sell my house. The court could actually seize my house and then pay me a check for $300,000
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and then the proceeds would go towards paying off punitive damages for vehicles, they're covered up to $10,000 you can't buy a car for $10,000 any brokerage account, any rental property, any savings, would all be able to be seized. They only protect up to 75,000 of personal assets, like personal belongings, they could actually just like a state sale, like my house, and then hand me a check. One of the arguments that a lot of people would say is, I can't take your retirement account. That is true, like, federally, like they're protected. They can't seize your retirement account. But if you have a 401, K or four, or 3b, or whatever, you have some huge judgment, and you're like, in your 50s, and you're going to retire in the next, like, 10 years, and you haven't paid that judgment back. Every time you take money out of your retirement account, that income is then subject to judgment, and they can just take it. So in the majority of states, punitive damages is rarely brought less than 1% of cases. In New Mexico, it was found that they were slapped on to 92% of all cases. So if you got a medical malpractice suit in the state of New Mexico, you would be slapped with punitive damages, and there was a high possibility that you would settle, because, like, why would you roll the dice and lose your house? And the trial lawyers would say, well, we would never do that. That's never been done before, but it's like, yeah, but it's never done until it is and then someone's life is ruined. There has been multiple nuclear verdicts that have come out of New Mexico over the past couple of years. The biggest one that happened, and this was a big catalyst, has increased the public's understanding and awareness of this issue was in one of the suburbs of Albuquerque, a urology case, and the verdict was like $412
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million
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it's that largest verdict ever for a medical malpractice case. Healthcare has become very strained because of these verdicts. People that were considering retiring were retiring early. I think the most poignant example was a husband and wife team. They provided primary.
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Care services. They're from New Mexico. They've lived and worked there taking care of the community out there for more than two decades, and they actually wrote a letter to their patients this past year saying that they were going to be closing up their practice and moving to Missouri because they couldn't afford to practice here anymore. And the insurance companies actually just started to close up shop and just say we're not going to provide any liability coverage in the state of New Mexico, or down to two or three the malpractice premiums, we're actually putting people out of business. If you're filling all your slots, it's not like you can expand your revenue to cover increasing costs. So if medical malpractice rates go up and you're not making any more money, then the lights go off. Here's Dr John Bakar talking about the impact of malpractice premiums on surgical oncologists like her, the malpractice premium is a factor for surgeons in private practice. For them, being able to afford the overhead, including the malpractice insurance premiums, was really next to impossible. Was very, very challenging for the plastic surgeons that were hospital employed. The malpractice premiums didn't come as much into it, but because there were no private practice plastic surgeons in the market, it just meant that they had so much more in terms of their patient volume than elastic surgeons in other states have, and so their availability to provide what I would consider complete reconstructive care was limited. So try to make sure that patients are happy in the end. In my two years, I saw it become more and more of a problem, not just for me, but for every single surgical oncologists in the state. So how did Dr Aaron Snyder first get involved in advocacy a friend of mine who I was working with here in Albuquerque, who was involved in ACEP at the American College of Emergency Physicians, he joined and actually ended up becoming the new mexico ASAP president, and sort of convinced me, based on our conversations, that I should join ASAP and get a little bit more involved. I'm the kind of person that if you give me a little bit of a running room and you put a little responsibility, I kind of take it as far as I can. And just one of those people. So he and I revamped the organization, rewrote the bylaws, hired a new executive director, and sort of did a lot of like in house cleaning, to get the organization up and running and functional, and figuring out, you know, what we can and can't do during the legislative session, we have a white coat day. The New Mexico Medical Society, the greater Albuquerque Medical Association, the individual specialties like, like ASAP or AAFP, try to get as many doctors up on the Capitol Hill, go meet with all the legislators. That's been an ongoing annual thing for the past few years, and has grown each year. And during that, I started to meet the people, trade some business cards, and I just started reaching out to all of the other professional organizations. I just like, would Google, their website and then just like, email, Hey, I'm the president. Who's your president? Can we get involved and talk and create a little bit of like, a president roundtable? For the specialties, and it also created a little bit of support. So from legislation, if a doctor, say, ophthalmology gets up there and says, Listen, this scope expansion for optometrist is really going to harm patients. They should not be using lasers. Well, the legislators just think you're just trying to protect your own right. But if another specialty gets up there and Emergency Medicine says, Hey, we also oppose this, because we see when somebody gets harmed, they come to the emergency department. So it carries a little bit of weight when somebody who doesn't have any direct skin in the game is also advocating plus or minus for a bill. So I did that with anesthesia, and I did that with ophthalmology. And a few organizations, was very well received. They appreciated that I was spending a lot of time writing these letters, showing up till committee meetings, and built some goodwill. A bunch of us started, like writing op eds into the newspapers, meeting with the legislators to bring them over to the idea that it does need to be changed. There wasn't a lot of understanding by the legislators. They didn't think that this was a major issue. It took a lot of cajoling and meeting and explaining over and over again until they came around to the idea that there was actually more than one issue that's driving physicians out of the state. My wife is a daily medicine physician. She decided to tackle the issue from a political standpoint, she joined the Bernalillo County Democratic Party resolution committee and wrote a medical malpractice resolution to see if we could force the legislators to the table through a grassroots movement, through their own organization, the legislators slowly were starting to come around to the idea that this was an issue, because all the physician groups started saying, like, listen, like, we can't take on any more patients. The gastroenterology group that I mentioned that does a quarter of the state's colonoscopies, I was told at one point that they were backlogged 2000 scopes, and so they were just taking no more referrals. At one point, the dermatology referrals here were one and a half.
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Half years out for an appointment, it had gotten so bad that like patients were obviously coming to the ER because they just couldn't get an appointment with anybody, couldn't get an appointment with their primary, couldn't get an appointment with a specialist. And so I've been actually doing more primary care in the ER than I've ever done in my 10 years as an attending. I practice more defensive medicine than I ever have, because I know that if I send somebody to a primary to get a CT scan or to get some sort of lab, it's not going to get done because they don't one, have one or two. It's like a six month wait. The legislators were coming around, because the general population was actually starting to come around, and they were starting to call and harass the legislators. Hey, this is a problem. I can't see my doctor. One night, it was like two in the morning. I had a middle aged woman who came in. She was clearly jaundiced, she had autoimmune hepatitis, and had been in the hospital like, a month before, and had been referred to gi for follow up. And her gi appointment was like, two more months away, instead of the usual, like, you know, a couple weeks. So she was back and she was gonna get admitted to the hospital, and they were kind of frustrated. And I said, Listen, I don't blame you guys, like you're here, because here because, like you're trying to get care, really, you should be complaining to your legislator about this, I kind of like in passing, and they're like, What do you mean? And I was like, Oh, well, like, You're not the first person I've had this conversation with tonight. This is not your fault. You just can't get care. And you can't get care because the legislators don't want to hear what we have to say. So you should call your representatives. You know who it is. And they looked at me and they said, they said, Yeah, she lives like three doors down. We're gonna go knock on our door tomorrow. So that actually
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happened several times. The New Mexico Medical Society actually created a barcode, like one of those QR codes, so you could just scan it. It takes you to a web page where you can type in your address, and it tells you who your legislators are. So we just started giving that to people, and then we started to try to get the other healthcare professionals involved in addition to the public. So I started to reach out to the other major medical systems, and I actually ended up having frank conversations with them, like, listen like I can call them all day long, but I don't have any money. You guys have huge advertising campaigns, like you have billboards all over the state instead of saying, call your cardiologist, we have appointments today, which we know isn't true. Why don't you put one up that says medical malpractice is running doctors out of the state. Call your legislator. It wasn't quite so frank, but the point was, like, I was like, you guys got to get involved in this fight. So they started getting involved just prior to the 2025 legislative session, a locally, homegrown organization called think New Mexico, put out a breakdown of the problems with healthcare within New Mexico and why healthcare New Mexico was starting to really struggle. They put out 10 policies to improve access, improve retention and improve recruitment, improve the medical malpractice, like landscape, so that people do want to stay here. So it was really a great, sort of like seed to kind of get everything going. New Mexico medical society were obviously pushing on their various doors. And one of the legislators based out of Los Alamos, she was initially very opposed to it, and some of the physicians in her district started meeting with her and working with her last summer, and I was told that around November, she kind of came around and was like, okay, like, I I get it now. And so she decided to craft this bill. HB, 99 so instead of having uncapped punitive damages, the bill specifically put caps on punitive damages that think that they're still very high. The independent practitioners are capped at $900,000
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they didn't change the protections for your home or your vehicles or your personal belongings, so they can still seize everything that you own. I think 6 million on a group is really high. Don't think a lot of groups have like the liquidity for a 6 million verdict. I think that it can be paid if the group is lucrative and a high earning specialty, but if you're a primary care physician, that person's never going to pay it back. And then hospitals, it's 15 million. I think that for bigger organizations, these are multi billion dollar corporations, I think that they can absorb that sum if they're not having repetitive hits. But the smaller hospitals, they don't have $15 million but there's a cap, which is a start. It also raised the definition from preponderance of evidence to clear and convincing. So that's like a pretty big step, because it makes it harder for punitive damages to be levied. And then the other thing that it did is, instead of being able to slap the punitive damages up front, it actually disallowed them from doing that. So the case has to completely go through discovery, and then punitive damages can be levied, and it has to be levied externally from the medical practice suit, and it has to be reviewed by a judge. So I think that the raising the standard to clear and convincing, and the moving it past discovery and has to be reviewed by a judge is probably the best protection that we could have asked for out of the legislation. So that's like the big win. So it's not a perfect bill. I don't think New Mexico is going to retain or recruit physicians, but.
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On this bill, but I think it'll hopefully help to dissuade some people who maybe were considering leaving because it's like an untenable place to practice. Passing HB 99 is a really significant change, but I don't think it's the only change that needs to happen, because it doesn't completely eliminate punitive damages. It just puts a cap on them and makes them a little bit harder to prove, I think, that there's still a lot of work to be done in New Mexico to make that environment inclusive and equitable for surgeons like me, but also for our patients. Everybody should be able to get what they need in New Mexico. And I think obviously one of the things impacting that is the shortage of physicians. And the question is, how do you recruit them back? You know, how do I feel after having left and moved to another state? I feel relieved, and I feel really happy for my colleagues, and I feel proud of the fact that I could share my story and advocate and help get this important bill passed. But I also feel like almost every other state is friendlier towards physicians in terms of malpractice, and I think that there's a lot of other things that could be considered to really make the state welcoming, to really support rural clinicians. Rural communities in New Mexico are really struggling, and not even having a functioning hospital is definitely going to make your health outcomes much, much worse. You probably know New Mexico is one of the states in which Medicare and Medicaid is very heavily utilized, but reimburses the least, and so a lot of that makes it a challenging environment, not just for employed physicians like I was, but also for private practice physicians to even want to step foot into the environment, and without addressing a lot of that like it's going to be hard to recruit the number of physicians that you really need to make that workforce sustainable, to make sure that the physicians You do have don't burn out. I think New Mexico is a cautionary tale, and yet we've got Virginia considering increasing the punitive limits from 3 million to 6 million. You would think that states would look at New Mexico and say, Wow, all the doctors are leaving. Why wouldn't the same thing happen in our state? If we do that, it definitely will happen. States like Virginia should absolutely look at New Mexico and be like, it's going to be very, very challenging to recruit people here when everyone is leaving and everyone's getting burnt out, because when people start leaving, the ones who stay get even more burnt out, and they leave too. And so it's kind of a cycle, and I will do everything in my power to help New Mexico break that cycle and talk about, you know, all the positive experiences I had there, because I absolutely love the state. I love the history and the culture, the geography, the people were very kind and welcoming, and
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the patients were like some of the sweetest patients that I've ever had. And I miss all of that so much. I'm really happy that the first step has happened, and I'm hoping that this means that the state legislature is willing to hear us when we say that we have to make this a place that is better than other states in terms of recruiting physicians. We have to incentivize people to come here. Because, like everyone knows someone who is a physician who practiced in New Mexico and now has left. I asked Dr jambakar about the impact of the trial bar on malpractice in the state. In New Mexico, I saw a statistic somewhere that was like 80% of the trial attorneys don't live in the state, so they come into the state, make their money, drive out physicians, and then they don't have to live with the mess that they've created. The New Mexico State Government has trial attorneys who are in the legislature themselves, and if they are not in the legislature, they may be funding the legislature, because the legislature is the only one in the country that is unpaid, which means that inherently getting people to give up their time for the legislative session is a very challenging thing to do, and the people who can afford to do something like that are trial attorneys who can ease off on their caseload for a while and then do whatever needs to be done and leave for a few months and come back for However long it takes. And so, so not surgical oncologists. You're saying not surgical oncologist. There's like one retired physician, but also not like, you know, managers and trades people and H back technicians and like the people that should be representing New Mexicans, it's a really privileged group of people that can afford to basically live unpaid for several months at a time. I think that's part of this challenge as well. Is how do we get real New Mexicans voices heard when that's who you have representing you? And there's a lot of great things that the LED.
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Legislature has done, for example, the universal child care. I think that's pretty brilliant. I just don't know why health care is such a low priority, why that isn't something that every single politician is talking about every single day. Why is that not something that all of the governor candidates are talking about every single day. I'm really glad that the current governor made the push that she did to actually get this bill passed and over the finish line, and I'm thrilled about that, but it should also be the next governor who cares about this even more. What else can you do to incentivize the residents who are being trained in New Mexico into staying Most states have like 50, 60% of the residents end up staying and practicing in that state. But in New Mexico, it's like much lower, somewhere in the 30, 40% range. Why is that and so making it an attractive place for them to practice because of student loan repayments and things like that, like all of that really needs to be addressed in order to to really tackle this, this shortage. Again, I'm really excited that the first step was passed. I was cautiously optimistic, but I didn't want to get my hopes up, because I already had my heart broken. But I think if the state government really decides to invest in all of these other things that we're talking about to make it an attractive state, then, for sure, I would love to come back. I definitely left my heart in New Mexico. Dr Aaron Snyder says that becoming an advocate for malpractice reform was something that really changed him. I did never see myself doing any of this. I always thought like, well, you know, I'm not really interested in that sort of thing. And now, that I've been doing it, it's very interesting to see, like, how far you can go. I'm only an ASAP, because my friend, because I was, I would like be spouting off and rabble rousing to him and yelling into the wind. And he's like, dude, maybe you should do something. And so I was like, Well, I don't really know. I don't really have that much time. And he's like, Nah, you can do it. It's as much as you want to make it. It's make it whatever you want. And so you twisted my arm into it, and then here I am, two years later. That's always the story, and I love it. It's like, somebody's like, come on, you can do it. Come with me. You're gonna be on this board. And then next thing you know, you're doing amazing things and then bringing other people with you, like, you can do this. Honestly, the thing that makes me happy is when people just show up, because, like, I'm putting in a lot of effort, and then only a few people show up. It's like, a little bit little bit like, you know, man, I put a lot of effort into this, but if you keep working at it, then it does seem to grow. And then I honestly didn't think the legislation was going to pass this year. I thought we were going to run out of time, and so I was quite surprised that it did. And it's a little bit rejuvenating to see your effort start to actually have some turnaround. It has been nice. I've made a lot of really great friends. It was really nice to just like, connect with people from other specialties. I think the emergency department, no one ever wants to come down and visit us. No one ever wants to get a phone call from us. We're sort of, like, on our own little world. And so it's been really nice to meet and talk with all the other professional organizations and realize, like, okay, like we're all experiencing the same problems, just like, in our own way. So that's been a little bit nice too, because you don't really feel like you're living in this lonely silo by yourself. It's kind of an antidote to burnout. Some of the times that I feel the most rejuvenated and the most optimistic are when I go to meetings and I see doctors like you that are focused on a mission that's very important in their community, and they're making a difference, and I get so excited by that it makes me want to do more. Yeah, it's kind of funny, because my wife is like, one of those people who, like, if you have a loss, really kind of takes it personally. She's like, How Why am I even doing this? Yeah, I do that too. And I tell her, like, I don't even care if I win or lose. I think I just really like the fight, putting together the letters and putting together the arguments, and I like the process, which is very weird, because the outcome is obviously the goal. But I think I actually really just like learning about stuff, like in medicine, when's the last time that you really learned a lot of cool stuff in medicine? The process of just learning and being engaged in something that's healthcare adjacent, that's expanding my understanding of the system that I work in, I just like learning, I guess is really what it is, the process of learning, I think has been more rejuvenating for me than the actual outcome. I mean, the outcome is great, but one of the drivers of burnout that doesn't get addressed by a lot of physicians is we're a very motivated, very hard working group. You don't make it through undergrad and get accepted to med school and make it through med school and make it through residency, and make it through fellowship and, like, set up your practice, and you do all these things, and you're kind of climbing the mountain. And I think a lot of us actually struggle with reaching the top of the mountain, and then it's kind of like, you know, you go to work, you see your patients, you're doing this, and then a couple years go by and you just don't really have a lot of fulfillment in life, because the fulfillment really was climbing the mountain. And so I think that's actually what this is, kind of fill the void for me. I like going to see patients. I like taking sick patients, but it like fills the void of having something to like work towards. I think physicians just really enjoy having something to work on and having a project and having something to drive them, at least all of our a type personality colleagues. I think you're right, and especially when.
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Something that is really in your mission of helping patients, helping society, making the world a better place. Like how can you not feel excited about doing something like that? Yeah, absolutely. Thanks so much for listening to this episode of physicians taking back medicine, a new podcast by medical economics. I'm your host, Dr Rebecca Bernard, bringing you true stories of day to day physicians just like you who are fighting to improve the health care system. I hope to see you on the next episode. You
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you.
Today on physicians taking back medicine, you'll meet two physicians who are fighting for malpractice reform in their state of New Mexico. My name is Aaron Snyder. I am a board certified practicing emergency medicine physician in Albuquerque, New Mexico, from 2017 to 2024
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between two and 300 physicians left the state as a net negative, as the only state in the country that actually had a net loss during that period. And so the question is, well, why is New Mexico losing physicians at a faster clip than it can bring physicians in when there was a net positive of 44,000 physicians over the same period across the country? And part of that has to do with medical legal risk of practicing in New Mexico. I'm Imani jambakar. I'm a surgical oncologist, and I practiced in New Mexico for about two years before deciding that I needed to find an environment that was more inclusive for for me and for my patients, not so much that I was worried about how malpractice would potentially impact me, or that I felt like I was at risk for litigation, but really as it related to plastic surgery as a specialty. So this was something that I noticed almost immediately upon moving to the state, and I wrote op eds about it. I posted a lot about it. I went to the Capitol last year to advocate. The problem with the malpractice situation is that it did not incentivize anyone who was in private practice to come into the state, and that's a lot of plastic surgeons in the two years that I was practicing there, I only saw plastic surgeons leave. I didn't actually see any healthcare system in the entire state successfully recruit plastic surgeons, and every healthcare system in the state was looking and so what ended up happening was, for me, as a surgeon who treats patients with breast cancer, my patients were having to drive like 250, miles to El Paso, to further than that to try to get reconstructive care in New Mexico, the problem is that you don't have very many plastic surgeons who can offer all of those services, and then the ones who can offer those services are so backed up with patients because there aren't enough plastic surgeons who are Doing reconstructive surgery. That was the first time where I was having to have conversations with patients that were like, you basically can only have the same options that people in other states have if you're willing to leave the state and you're able to get the finances to go and stay somewhere else, because a lot of that doesn't get covered by insurance. The environment there was very, very challenging because of these limitations. Here's Dr Aaron Snyder to explain a little more about the state of malpractice in New Mexico. The medical malpractice Act was passed in the 1970s
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to help stabilize the insurance industry. At the time, the state created something called the patient compensation fund that insurers had to pay into. So the liability insurance company covers the first quarter million, and then the patient compensation fund covers the other half a million, and that includes economic damages and non economic damages, punitive damages is the images is the liability of the individual, and it is not covered under medical malpractice insurance generally, ever. Let's say that the physician was found to have wantonly disregarded the care of the patient, some sort of negligence, malfeasance, just blatantly tried to harm the patient or tried not to help the patient, so then you could be found for a punitive damage. And punitive damages had no caps, so you could be hit with a personal liability. This was fairly rare from 1974 up until 2021 when the legislation made changes to the medical malpractice act for punitive damage is that there's three definitions. There's preponderance of evidence, and that just means that 50% plus one think that something happened, that the physician was causing wanton disregard or malice. The next is clear and convincing evidence that's like the 90 95% like this is pretty obviously somebody did something like wrong on purpose, or just wasn't taking care of this patient. And then there's the criminal standard, that's like 100% so the majority of states have the clear and convincing evidence standard. New Mexico is one of one or two or three that has the.
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A preponderance of evidence. So in 2021 the legislature decided to change the definitions, which became more encompassing of who could be sued. The law is sponsored by a medical malpractice trial attorney. There's several of them in the legislature currently that have made this very difficult to get changed. They raised the caps, and they left the ability to have these unlimited punitive damages. They lumped in outpatient organizations such as like a GI group or a primary care office as the same as a hospital, and lumping them under the same category made their insurance premiums the same as a multi billion dollar hospital system. The insurance companies obviously found out about this because they're going to have to change the way that they insure these private groups. The malpractice insurance premium was going to be so high that the insurance company just told the groups that they wouldn't insure them at all. The legislators didn't believe them. They thought that they were just blowing smoke, and like trying to just get them to change the law. Specifically, a Gi Group here in New Mexico, they do about a quarter of the state's colonoscopies. Here in Albuquerque, they provide a huge service to the state. Their insurance company said that they weren't going to cover them for any dollar amount. There was no premium could cover their costs. The legislators didn't believe them, and they actually had to have a three way phone call with the insurance company. The legislators and the physicians and the insurance company had to tell the legislators like, we will not insure them unless you change this law. And they still didn't believe it. So the last week of December, they had to have a special session because they had to carve out independent practices from this, like mandate, that way they would be able to turn the lights on January one. So that was like very beginning of this slow, downhill fall that New Mexico has taken two legislative sessions between then and now. They redefined these independent groups as the third category, just exclude them from the hospital category and to kind of fix it, but it didn't really fix anything, because punitive damages is still uncapped. The rule here is that they can bring punitive damages as a case before talking to a judge. They file their medical malpractice case and they can file the punitive damages case at the same time, and they essentially force settlements to cases that would probably be able to be defensible, except for the fact that if you had to roll the dice for punitive damages, you would be willing to settle because you just don't want to take the chance. And the reason for that is because punitive damages here is held to that preponderance of evidence, so 50% plus one, and then people always say, Well, what is punitive damages? If you actually dig into the statutes for New Mexico about what is protected, your house is protected up to $300,000
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which
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back in like 1970 that was considered reasonable, but I'd have to sell my house. The court could actually seize my house and then pay me a check for $300,000
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and then the proceeds would go towards paying off punitive damages for vehicles, they're covered up to $10,000 you can't buy a car for $10,000 any brokerage account, any rental property, any savings, would all be able to be seized. They only protect up to 75,000 of personal assets, like personal belongings, they could actually just like a state sale, like my house, and then hand me a check. One of the arguments that a lot of people would say is, I can't take your retirement account. That is true, like, federally, like they're protected. They can't seize your retirement account. But if you have a 401, K or four, or 3b, or whatever, you have some huge judgment, and you're like, in your 50s, and you're going to retire in the next, like, 10 years, and you haven't paid that judgment back. Every time you take money out of your retirement account, that income is then subject to judgment, and they can just take it. So in the majority of states, punitive damages is rarely brought less than 1% of cases. In New Mexico, it was found that they were slapped on to 92% of all cases. So if you got a medical malpractice suit in the state of New Mexico, you would be slapped with punitive damages, and there was a high possibility that you would settle, because, like, why would you roll the dice and lose your house? And the trial lawyers would say, well, we would never do that. That's never been done before, but it's like, yeah, but it's never done until it is and then someone's life is ruined. There has been multiple nuclear verdicts that have come out of New Mexico over the past couple of years. The biggest one that happened, and this was a big catalyst, has increased the public's understanding and awareness of this issue was in one of the suburbs of Albuquerque, a urology case, and the verdict was like $412
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million
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it's that largest verdict ever for a medical malpractice case. Healthcare has become very strained because of these verdicts. People that were considering retiring were retiring early. I think the most poignant example was a husband and wife team. They provided primary.
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Care services. They're from New Mexico. They've lived and worked there taking care of the community out there for more than two decades, and they actually wrote a letter to their patients this past year saying that they were going to be closing up their practice and moving to Missouri because they couldn't afford to practice here anymore. And the insurance companies actually just started to close up shop and just say we're not going to provide any liability coverage in the state of New Mexico, or down to two or three the malpractice premiums, we're actually putting people out of business. If you're filling all your slots, it's not like you can expand your revenue to cover increasing costs. So if medical malpractice rates go up and you're not making any more money, then the lights go off. Here's Dr John Bakar talking about the impact of malpractice premiums on surgical oncologists like her, the malpractice premium is a factor for surgeons in private practice. For them, being able to afford the overhead, including the malpractice insurance premiums, was really next to impossible. Was very, very challenging for the plastic surgeons that were hospital employed. The malpractice premiums didn't come as much into it, but because there were no private practice plastic surgeons in the market, it just meant that they had so much more in terms of their patient volume than elastic surgeons in other states have, and so their availability to provide what I would consider complete reconstructive care was limited. So try to make sure that patients are happy in the end. In my two years, I saw it become more and more of a problem, not just for me, but for every single surgical oncologists in the state. So how did Dr Aaron Snyder first get involved in advocacy a friend of mine who I was working with here in Albuquerque, who was involved in ACEP at the American College of Emergency Physicians, he joined and actually ended up becoming the new mexico ASAP president, and sort of convinced me, based on our conversations, that I should join ASAP and get a little bit more involved. I'm the kind of person that if you give me a little bit of a running room and you put a little responsibility, I kind of take it as far as I can. And just one of those people. So he and I revamped the organization, rewrote the bylaws, hired a new executive director, and sort of did a lot of like in house cleaning, to get the organization up and running and functional, and figuring out, you know, what we can and can't do during the legislative session, we have a white coat day. The New Mexico Medical Society, the greater Albuquerque Medical Association, the individual specialties like, like ASAP or AAFP, try to get as many doctors up on the Capitol Hill, go meet with all the legislators. That's been an ongoing annual thing for the past few years, and has grown each year. And during that, I started to meet the people, trade some business cards, and I just started reaching out to all of the other professional organizations. I just like, would Google, their website and then just like, email, Hey, I'm the president. Who's your president? Can we get involved and talk and create a little bit of like, a president roundtable? For the specialties, and it also created a little bit of support. So from legislation, if a doctor, say, ophthalmology gets up there and says, Listen, this scope expansion for optometrist is really going to harm patients. They should not be using lasers. Well, the legislators just think you're just trying to protect your own right. But if another specialty gets up there and Emergency Medicine says, Hey, we also oppose this, because we see when somebody gets harmed, they come to the emergency department. So it carries a little bit of weight when somebody who doesn't have any direct skin in the game is also advocating plus or minus for a bill. So I did that with anesthesia, and I did that with ophthalmology. And a few organizations, was very well received. They appreciated that I was spending a lot of time writing these letters, showing up till committee meetings, and built some goodwill. A bunch of us started, like writing op eds into the newspapers, meeting with the legislators to bring them over to the idea that it does need to be changed. There wasn't a lot of understanding by the legislators. They didn't think that this was a major issue. It took a lot of cajoling and meeting and explaining over and over again until they came around to the idea that there was actually more than one issue that's driving physicians out of the state. My wife is a daily medicine physician. She decided to tackle the issue from a political standpoint, she joined the Bernalillo County Democratic Party resolution committee and wrote a medical malpractice resolution to see if we could force the legislators to the table through a grassroots movement, through their own organization, the legislators slowly were starting to come around to the idea that this was an issue, because all the physician groups started saying, like, listen, like, we can't take on any more patients. The gastroenterology group that I mentioned that does a quarter of the state's colonoscopies, I was told at one point that they were backlogged 2000 scopes, and so they were just taking no more referrals. At one point, the dermatology referrals here were one and a half.
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Half years out for an appointment, it had gotten so bad that like patients were obviously coming to the ER because they just couldn't get an appointment with anybody, couldn't get an appointment with their primary, couldn't get an appointment with a specialist. And so I've been actually doing more primary care in the ER than I've ever done in my 10 years as an attending. I practice more defensive medicine than I ever have, because I know that if I send somebody to a primary to get a CT scan or to get some sort of lab, it's not going to get done because they don't one, have one or two. It's like a six month wait. The legislators were coming around, because the general population was actually starting to come around, and they were starting to call and harass the legislators. Hey, this is a problem. I can't see my doctor. One night, it was like two in the morning. I had a middle aged woman who came in. She was clearly jaundiced, she had autoimmune hepatitis, and had been in the hospital like, a month before, and had been referred to gi for follow up. And her gi appointment was like, two more months away, instead of the usual, like, you know, a couple weeks. So she was back and she was gonna get admitted to the hospital, and they were kind of frustrated. And I said, Listen, I don't blame you guys, like you're here, because here because, like you're trying to get care, really, you should be complaining to your legislator about this, I kind of like in passing, and they're like, What do you mean? And I was like, Oh, well, like, You're not the first person I've had this conversation with tonight. This is not your fault. You just can't get care. And you can't get care because the legislators don't want to hear what we have to say. So you should call your representatives. You know who it is. And they looked at me and they said, they said, Yeah, she lives like three doors down. We're gonna go knock on our door tomorrow. So that actually
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happened several times. The New Mexico Medical Society actually created a barcode, like one of those QR codes, so you could just scan it. It takes you to a web page where you can type in your address, and it tells you who your legislators are. So we just started giving that to people, and then we started to try to get the other healthcare professionals involved in addition to the public. So I started to reach out to the other major medical systems, and I actually ended up having frank conversations with them, like, listen like I can call them all day long, but I don't have any money. You guys have huge advertising campaigns, like you have billboards all over the state instead of saying, call your cardiologist, we have appointments today, which we know isn't true. Why don't you put one up that says medical malpractice is running doctors out of the state. Call your legislator. It wasn't quite so frank, but the point was, like, I was like, you guys got to get involved in this fight. So they started getting involved just prior to the 2025 legislative session, a locally, homegrown organization called think New Mexico, put out a breakdown of the problems with healthcare within New Mexico and why healthcare New Mexico was starting to really struggle. They put out 10 policies to improve access, improve retention and improve recruitment, improve the medical malpractice, like landscape, so that people do want to stay here. So it was really a great, sort of like seed to kind of get everything going. New Mexico medical society were obviously pushing on their various doors. And one of the legislators based out of Los Alamos, she was initially very opposed to it, and some of the physicians in her district started meeting with her and working with her last summer, and I was told that around November, she kind of came around and was like, okay, like, I I get it now. And so she decided to craft this bill. HB, 99 so instead of having uncapped punitive damages, the bill specifically put caps on punitive damages that think that they're still very high. The independent practitioners are capped at $900,000
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they didn't change the protections for your home or your vehicles or your personal belongings, so they can still seize everything that you own. I think 6 million on a group is really high. Don't think a lot of groups have like the liquidity for a 6 million verdict. I think that it can be paid if the group is lucrative and a high earning specialty, but if you're a primary care physician, that person's never going to pay it back. And then hospitals, it's 15 million. I think that for bigger organizations, these are multi billion dollar corporations, I think that they can absorb that sum if they're not having repetitive hits. But the smaller hospitals, they don't have $15 million but there's a cap, which is a start. It also raised the definition from preponderance of evidence to clear and convincing. So that's like a pretty big step, because it makes it harder for punitive damages to be levied. And then the other thing that it did is, instead of being able to slap the punitive damages up front, it actually disallowed them from doing that. So the case has to completely go through discovery, and then punitive damages can be levied, and it has to be levied externally from the medical practice suit, and it has to be reviewed by a judge. So I think that the raising the standard to clear and convincing, and the moving it past discovery and has to be reviewed by a judge is probably the best protection that we could have asked for out of the legislation. So that's like the big win. So it's not a perfect bill. I don't think New Mexico is going to retain or recruit physicians, but.
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On this bill, but I think it'll hopefully help to dissuade some people who maybe were considering leaving because it's like an untenable place to practice. Passing HB 99 is a really significant change, but I don't think it's the only change that needs to happen, because it doesn't completely eliminate punitive damages. It just puts a cap on them and makes them a little bit harder to prove, I think, that there's still a lot of work to be done in New Mexico to make that environment inclusive and equitable for surgeons like me, but also for our patients. Everybody should be able to get what they need in New Mexico. And I think obviously one of the things impacting that is the shortage of physicians. And the question is, how do you recruit them back? You know, how do I feel after having left and moved to another state? I feel relieved, and I feel really happy for my colleagues, and I feel proud of the fact that I could share my story and advocate and help get this important bill passed. But I also feel like almost every other state is friendlier towards physicians in terms of malpractice, and I think that there's a lot of other things that could be considered to really make the state welcoming, to really support rural clinicians. Rural communities in New Mexico are really struggling, and not even having a functioning hospital is definitely going to make your health outcomes much, much worse. You probably know New Mexico is one of the states in which Medicare and Medicaid is very heavily utilized, but reimburses the least, and so a lot of that makes it a challenging environment, not just for employed physicians like I was, but also for private practice physicians to even want to step foot into the environment, and without addressing a lot of that like it's going to be hard to recruit the number of physicians that you really need to make that workforce sustainable, to make sure that the physicians You do have don't burn out. I think New Mexico is a cautionary tale, and yet we've got Virginia considering increasing the punitive limits from 3 million to 6 million. You would think that states would look at New Mexico and say, Wow, all the doctors are leaving. Why wouldn't the same thing happen in our state? If we do that, it definitely will happen. States like Virginia should absolutely look at New Mexico and be like, it's going to be very, very challenging to recruit people here when everyone is leaving and everyone's getting burnt out, because when people start leaving, the ones who stay get even more burnt out, and they leave too. And so it's kind of a cycle, and I will do everything in my power to help New Mexico break that cycle and talk about, you know, all the positive experiences I had there, because I absolutely love the state. I love the history and the culture, the geography, the people were very kind and welcoming, and
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the patients were like some of the sweetest patients that I've ever had. And I miss all of that so much. I'm really happy that the first step has happened, and I'm hoping that this means that the state legislature is willing to hear us when we say that we have to make this a place that is better than other states in terms of recruiting physicians. We have to incentivize people to come here. Because, like everyone knows someone who is a physician who practiced in New Mexico and now has left. I asked Dr jambakar about the impact of the trial bar on malpractice in the state. In New Mexico, I saw a statistic somewhere that was like 80% of the trial attorneys don't live in the state, so they come into the state, make their money, drive out physicians, and then they don't have to live with the mess that they've created. The New Mexico State Government has trial attorneys who are in the legislature themselves, and if they are not in the legislature, they may be funding the legislature, because the legislature is the only one in the country that is unpaid, which means that inherently getting people to give up their time for the legislative session is a very challenging thing to do, and the people who can afford to do something like that are trial attorneys who can ease off on their caseload for a while and then do whatever needs to be done and leave for a few months and come back for However long it takes. And so, so not surgical oncologists. You're saying not surgical oncologist. There's like one retired physician, but also not like, you know, managers and trades people and H back technicians and like the people that should be representing New Mexicans, it's a really privileged group of people that can afford to basically live unpaid for several months at a time. I think that's part of this challenge as well. Is how do we get real New Mexicans voices heard when that's who you have representing you? And there's a lot of great things that the LED.
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Legislature has done, for example, the universal child care. I think that's pretty brilliant. I just don't know why health care is such a low priority, why that isn't something that every single politician is talking about every single day. Why is that not something that all of the governor candidates are talking about every single day. I'm really glad that the current governor made the push that she did to actually get this bill passed and over the finish line, and I'm thrilled about that, but it should also be the next governor who cares about this even more. What else can you do to incentivize the residents who are being trained in New Mexico into staying Most states have like 50, 60% of the residents end up staying and practicing in that state. But in New Mexico, it's like much lower, somewhere in the 30, 40% range. Why is that and so making it an attractive place for them to practice because of student loan repayments and things like that, like all of that really needs to be addressed in order to to really tackle this, this shortage. Again, I'm really excited that the first step was passed. I was cautiously optimistic, but I didn't want to get my hopes up, because I already had my heart broken. But I think if the state government really decides to invest in all of these other things that we're talking about to make it an attractive state, then, for sure, I would love to come back. I definitely left my heart in New Mexico. Dr Aaron Snyder says that becoming an advocate for malpractice reform was something that really changed him. I did never see myself doing any of this. I always thought like, well, you know, I'm not really interested in that sort of thing. And now, that I've been doing it, it's very interesting to see, like, how far you can go. I'm only an ASAP, because my friend, because I was, I would like be spouting off and rabble rousing to him and yelling into the wind. And he's like, dude, maybe you should do something. And so I was like, Well, I don't really know. I don't really have that much time. And he's like, Nah, you can do it. It's as much as you want to make it. It's make it whatever you want. And so you twisted my arm into it, and then here I am, two years later. That's always the story, and I love it. It's like, somebody's like, come on, you can do it. Come with me. You're gonna be on this board. And then next thing you know, you're doing amazing things and then bringing other people with you, like, you can do this. Honestly, the thing that makes me happy is when people just show up, because, like, I'm putting in a lot of effort, and then only a few people show up. It's like, a little bit little bit like, you know, man, I put a lot of effort into this, but if you keep working at it, then it does seem to grow. And then I honestly didn't think the legislation was going to pass this year. I thought we were going to run out of time, and so I was quite surprised that it did. And it's a little bit rejuvenating to see your effort start to actually have some turnaround. It has been nice. I've made a lot of really great friends. It was really nice to just like, connect with people from other specialties. I think the emergency department, no one ever wants to come down and visit us. No one ever wants to get a phone call from us. We're sort of, like, on our own little world. And so it's been really nice to meet and talk with all the other professional organizations and realize, like, okay, like we're all experiencing the same problems, just like, in our own way. So that's been a little bit nice too, because you don't really feel like you're living in this lonely silo by yourself. It's kind of an antidote to burnout. Some of the times that I feel the most rejuvenated and the most optimistic are when I go to meetings and I see doctors like you that are focused on a mission that's very important in their community, and they're making a difference, and I get so excited by that it makes me want to do more. Yeah, it's kind of funny, because my wife is like, one of those people who, like, if you have a loss, really kind of takes it personally. She's like, How Why am I even doing this? Yeah, I do that too. And I tell her, like, I don't even care if I win or lose. I think I just really like the fight, putting together the letters and putting together the arguments, and I like the process, which is very weird, because the outcome is obviously the goal. But I think I actually really just like learning about stuff, like in medicine, when's the last time that you really learned a lot of cool stuff in medicine? The process of just learning and being engaged in something that's healthcare adjacent, that's expanding my understanding of the system that I work in, I just like learning, I guess is really what it is, the process of learning, I think has been more rejuvenating for me than the actual outcome. I mean, the outcome is great, but one of the drivers of burnout that doesn't get addressed by a lot of physicians is we're a very motivated, very hard working group. You don't make it through undergrad and get accepted to med school and make it through med school and make it through residency, and make it through fellowship and, like, set up your practice, and you do all these things, and you're kind of climbing the mountain. And I think a lot of us actually struggle with reaching the top of the mountain, and then it's kind of like, you know, you go to work, you see your patients, you're doing this, and then a couple years go by and you just don't really have a lot of fulfillment in life, because the fulfillment really was climbing the mountain. And so I think that's actually what this is, kind of fill the void for me. I like going to see patients. I like taking sick patients, but it like fills the void of having something to like work towards. I think physicians just really enjoy having something to work on and having a project and having something to drive them, at least all of our a type personality colleagues. I think you're right, and especially when.
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Something that is really in your mission of helping patients, helping society, making the world a better place. Like how can you not feel excited about doing something like that? Yeah, absolutely. Thanks so much for listening to this episode of physicians taking back medicine, a new podcast by medical economics. I'm your host, Dr Rebecca Bernard, bringing you true stories of day to day physicians just like you who are fighting to improve the health care system. I hope to see you on the next episode. You
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you.
