Rep. Elaine Sena Cortez, R-Hobbs, right, gets emotional while discussing her mother’s battle with cancer during a House Health and Human Services Committee hearing Friday on amendments to House Bill 99 at the state Capitol. HB 99 calls for caps on punitive damages in medical malpractice cases in New Mexico. Photo by Matt Dahlseid/The New Mexican

By CLARA BATES
The Santa Fe New Mexican

The day before Valarie Gee’s son underwent a routine cardiac procedure, he was “jumping in the swimming pool” and running around, she said.

The next day, she added, the procedure left him paralyzed.

“When medical providers and corporations cause harm, they should be held responsible, not just for our family, but to help prevent this from happening to another child,” Gee told a group of reporters at the state Capitol in Santa Fe on Friday afternoon.

Gee was among a few dozen patients and advocates who gathered to urge lawmakers to consider their experiences when crafting changes to New Mexico’s medical malpractice law, following the first committee hearing on a bill the governor has called a priority.

The House Health and Human Services Committee advanced the proposal, which would cap punitive damages in malpractice cases, by a vote of 7-3 — with a controversial amendment carving out corporate hospitals from protections. The bill heads next to the House Judiciary Committee.

Republican Rep. Nicole Chavez of Albuquerque joined Democrats on the committee in voting yes, saying she had reservations about the amended version but wanted the bill to continue in the process.

Rep. Christine Chandler, D-Los Alamos, a co-sponsor of House Bill 99, said she also was concerned about the amendment but noted the bill is far from final.

“Legislation is an iterative process, and I’m optimistic we can start working out some additional approaches that will address some of the concerns I continue to have with regard to that amendment,” Chandler said in an interview after the hearing.

Attorneys representing injured patients had been advocating for the corporate carve-outs in closed-door negotiations this week.

Under HB 99, punitive damages, now uncapped, would be limited to around $900,000 in lawsuits against independent doctors, $1 million for independent outpatient clinics and $6 million for locally owned and operated hospitals — the same caps set for compensatory damages in medical malpractice cases. However, punitive damages would be left uncapped in complaints against large corporate hospitals. The bill also would raise the legal standard of proof required for awarding punitive damages and other policy changes.

The committee hearing room was filled with parents and injured children who were victims of medical malpractice, some of them in wheelchairs, as well as malpractice attorneys, patient advocates and a handful of doctors in white coats.

Most controversial in negotiations over the bill have been changes to punitive damages, which are designed to punish providers for wrongdoing and are currently uncapped in New Mexico medical malpractice cases.

“The prospect for very high punitive damage awards — and we see them in the state — encourages litigation and encourages settlements at a level that is higher than would otherwise be warranted,” Chandler said.

Under an amendment proposed by committee Chair Elizabeth “Liz” Thomson, D-Albuquerque, corporate hospitals are excluded from the protections.

“We want to tell these huge national corporations that they cannot cut corners on medical care and leave people damaged,” Thomson said.

“What I’m trying to do is to have it so that huge, multibillion-dollar corporations do not get the same protections as our small local hospitals,” she added.

Rep. Marianna Anaya, D-Albuquerque, said she is “here to protect providers” and smaller clinics, “but I’m definitely not here to make any excuses or to help multibillion-dollar companies skirt responsibility in our state.” She noted New Mexico has the highest rate of private equity-backed hospitals in the nation.

Chandler said she didn’t approve of the corporate carve-out due to concerns it wouldn’t solve the state’s severe doctor shortage, which the measure largely is aimed at addressing.

But, Chandler said, “this is the bill, and we have a responsibility to move forward with it.”

She added in an interview that only a few hospitals in the state would qualify for the caps under the amendment, so “it really doesn’t provide sufficient relief.”

“Excessive litigation against those hospitals will continue, and those doctors who work there will continue to be implicated in those cases,” she said.

Medical malpractice has turned into one of the defining issues before lawmakers and Lujan Grisham this year, with the governor calling action a priority before she leaves office and arguing changes to the state’s medical malpractice system are necessary to help recruit and retain doctors.

Republicans on the panel opposed the carve-out.

House Minority Whip Alan Martinez, R-Bernalillo, said the amendment “gutted” the bill.

“We have really good negotiated language without the amendment,” Martinez said. “That was what we promised our constituents, that we were going to do — we were going to fix medical malpractice. Now we’re starting to carve out people, because we have an itch against a corporate hospital. I get my care at a corporate hospital. I think they do a great job.”

Chavez said she feels the bill was watered down, but “I wasn’t going to be the vote today that let us die and not move forward.” She added that she hopes the next committee changes the bill.

“I feel like we’re just going to pass this piece of legislation that puts a small Band-Aid and pretend that it helps New Mexicans,” she said.

Feliz Rael, president of the New Mexico Trial Lawyers Association, which includes lawyers who represent injured patients, said in a statement, “While the bill isn’t perfect, we are very pleased to see protection for patients that are harmed by multi-billion dollar corporations.”

The New Mexico Medical Society, a professional organization for physicians, said in a news release Friday afternoon members are “deeply concerned” by the amendment carving out some hospitals from the punitive damages caps.

The amendment “picks winners and losers by treating providers differently, which makes the healthcare system less stable and causes access to care to suffer, especially in rural New Mexico,” Dr. Angelina Villas-Adams said in a statement.