Lawmakers blast law professor who claimed New Mexico doesn't have doctor shortage

Daniel J. Chacón, The Santa Fe New MexicanThe Santa Fe New Mexican

A Northwestern University law professor who appeared before New Mexico lawmakers to discuss the effects of medical malpractice reform kicked off his presentation Tuesday by calling himself an equal opportunity annoyer.

“Sometimes my research annoys Democrats,” Bernard Black, a professor at the Pritzker School of Law and recently disbarred attorney, told members of the Legislative Health and Human Services Committee. “Sometimes it annoys Republicans.”

In New Mexico, where medical malpractice reform is an ongoing topic of discussion amid an exodus of doctors, his annoyance proved nonpartisan.

After Black claimed New Mexico is “gradually accumulating more physicians per capita,” except in rural areas, and that damage caps on medical malpractice claims have minimal impact on the supply of doctors, lawmakers on both sides of the aisle delivered a tongue-lashing.

Sen. Nicole Tobiassen, an Albuquerque Republican, said Black’s data was “so far off the charts” it was infuriating.

“Your data sets are so old that many of us in this room were probably using half a can of Aqua Net a day, and my friend Senator [Jay] Block over here had a mullet,” she said.

“So, for me, it’s hard to take it seriously. Actually, I’ve been chuckling a little bit during your presentation, quite honestly, and a couple times you stated … you don’t know what’s going on in New Mexico. I agree with you, and it shows,” she said, adding New Mexicans are struggling to find a doctor in the state.

“I’ll tell you, personally, I’ve had to fly my husband out of this state to save his life,” said Tobiassen, whose husband has been hospitalized for undisclosed reasons.

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“He’s laying in a hospital bed right now,” she added, fighting back tears. “You have no clue how many New Mexicans can’t get to a hospital, how many New Mexicans delay care for months and years because they can’t get to a doctor. I’m offended on behalf of every New Mexican that is suffering or dying. Your data does not apply, and it should never have been brought here today. This is not balanced.”

Flawed data?

Medical malpractice promises to be a contentious issue during next year’s regular 30-day session as Republicans and some Democrats push to reform a system they say is skewed toward a few injured patients and trial lawyers raking in millions of dollars.

Changes to the state’s medical malpractice law have been a moving target.

Lawmakers made sweeping changes to the system in 2021. They raised the cap on damages from $600,000 per claim to a current rate of $5.5 million for hospitals, an amount that will grow to $6 million in 2026. Caps for individual providers rose to $750,000.

More changes followed in 2023 when lawmakers lowered the cap for small clinics that had faced the same caps as hospitals.

But concerns remain. Citing a surge in insurance premium costs, providers say more changes are needed to the Medical Malpractice Act, which they and others say is the reason many doctors are leaving the state.

Black’s presentation showed a 1% to 2% increase in urban physicians with a decreasing number of rural physicians over the long term.

However, a new nonprofit founded by the New Mexico Medical Society and others reports the state has lost 248 physicians in the past five years. The state also has the oldest physician workforce in the nation, with nearly 40% of doctors aged 60 or older and expected to retire by 2030, according to the group.

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Tuesday’s presentation exposed the divisiveness around the issue.

Sen. Martin Hickey, an Albuquerque Democrat who is a retired physician, also was critical of Black’s dataset.

“I am a recovering academic, and I wish that I could go to a national meeting where you presented this because I would really take issue, point by point, as is done in national meetings when data is presented,” he said.

“We’re the only state to lose doctors,” Hickey added.

Hickey said he was “pretty stunned” the source of Black’s dataset was the American Medical Association.

“AMA consists of 20% of physicians in the country, and physicians are notorious for not filling out surveys,” he said.

“You’re lucky if you get a 10% response,” Hickey said, adding he believes Black’s dataset is “very flawed.”

“The issue here in New Mexico is we are losing physicians,” he said. “I mean, if you try to get an appointment, you can’t. And it only gets worse. That’s the smell test. The physicians are leaving.”

‘Blatant bias’

Three Senate Republicans on the committee issued a joint statement after Black’s presentation objecting to what they called “blatant bias.”

“Progressive Democrats such as Liz Thompson would rather shield trial attorneys with lies and misinformation than truly represent the needs of everyday New Mexicans who are begging for commonsense solutions to improve their access to quality health care,” they said, referring to the state representative who chairs the committee.

“Until progressive Democrats choose to represent the needs of their constituents over the needs of greedy trial attorneys, New Mexico will continue to lose doctors in droves and our families and communities will continue to pay the price,” they said.

The three senators also said the decision to invite “a disbarred lawyer and controversial professor such as Bernard Black” proved their point.

Thomson said in a statement lawmakers bring in a wide range of experts to present information and answer questions during the legislative interim.

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“It’s deeply disappointing that Bernard Black failed to disclose his recent disbarment before speaking with our committee member [Tuesday],” she added.

In a telephone interview during a layover in Denver, Black refuted criticisms about his data set.

“It’s good data,” he said. “I’m not going to say it’s perfect. No dataset is perfect. But in all of my research, I’m using the best available data.”

Black, who described himself as a “libertarian Republican,” also bemoaned what he called ad hominem attacks.

“If you want to attack my results, attack my results,” he said, adding his harshest critics used up their three-minute time limit to lecture him, leaving no time for him to respond.

“I’m not saying New Mexico couldn’t use more physicians,” he added. “I’m not saying that it isn’t sometimes hard to find a doctor. But I’m saying, relatively, New Mexico isn’t doing so badly.”

Asked about being disbarred, Black said the matter is in “active litigation.”

“I believe that was entirely wrong, and I’m fighting it,” he said.

Black said he’s experienced attacks from politicians in the past and complimented New Mexico lawmakers who delved into the details with questions instead of statements.

“I was actually impressed that there were 15, 17 legislators in the room and most of them asked questions and most of them seemed to want answers as opposed to, you know, here’s my three minutes to talk,” he said. “That’s a sign of a good legislative process. I think some people were actually interested in answers.”