Medical Malpractice
NEW MEXICO’S MALPRACTICE SYSTEM IS OUT OF BALANCE.
What Happened?
In 2021, with the Covid pandemic in New Mexico in full swing, the New Mexico Medical Society told the Office of Superintendent of Insurance that this was not the time to introduce a complete revision of the Medical Malpractice Act. Physicians were swamped trying to save lives. The Office of the Superintendent of Insurance agreed.
Despite this agreement, House Bill 75, sponsored by Rep. Damon Ely on behalf of the Trial Lawyers Association, and a trial attorney himself, made significant changes to the Medical Malpractice Act. Liability damages were raised. Definitions were changed. Physicians were excluded from the process. With the Governor’s signature, the bill became law. New Mexico’s malpractice system was thrown into chaos.
The bill left independent providers unable to find insurance for the new year because the new law could have been interpreted as having independent providers subject to a $4 million cap beginning January 1,2022.
In response, the Governor signed House Bill 11 that clarified the caps and was intended to help independent health care providers secure insurance coverage and not have to close their doors. Doctors, patients, insurance companies and hospitals all participated in and agreed to the provisions of this measure.
New Mexico now ranks second in the nation for medical malpractice lawsuits per capita. Why? Because the system incentivizes lawyers to file malpractice suits since there is no limit on attorney fees. New Mexico’s malpractice law contains several elements that incentivize lawyers to file cases here. This in turn discourages physicians and other healthcare providers from staying in or relocating to New Mexico.
Some of the issues with New Mexico’s medical malpractice law include that we have no statutory cap on attorney’s fees and we allow lump-sum payouts for future medical costs from the Patient’s Compensation Fund.
Lump Sum Payouts, are based on an estimate of lifetime costs following a medical injury. Attorneys take their fee immediately, which can be 30-40% of the award. Patients can be left without enough money to cover on-going needs. Patients who have been harmed should not be exposed to risk.
How are Patients Impacted by the Proposed Reforms?
To illustrate how the proposed reforms to the Medical Malpractice act would benefit patients who have been harmed, consider the following examples.
Currently the attorney representing the injured patients typically charges 35-40%. In this example, the attorney recovers their fee of 40% from both the compensatory damages and the future medical payments, and the patient receives the balance – $630,000.
| Court Award Current | Total | Attorney Fee 40% | Patient |
| Ongoing future medical costs that exceed the cap | $300,000 | $120,000 | $180,000 |
| Compensatory Damages (assume Max) | $750,000 | $300,000 | $450,000 |
| $1,050,000 | $420,000 | $630,000 |
Note: the $750,00 maximum goes up each year based on the CPI.
With the proposed reforms, the patient would receive $703,000, meeting the objective of the patient receiving the largest portion of the damages awarded.
| Total | Attorney Fee 33% | Patient | |
| Ongoing future medical costs that exceed the cap | $300,000 | $99,000 | $201,000 |
| Compesnatory Damages (assume Max) | $750,000 | $247,500 | $502,500 |
| $1,050,000 | $346,500 | $703,500 |
What if the case settles before going to court, as many cases do?
Currently, assuming an attorney fee of 40% again, the patient would receive a lump sum payment of $630,000. Assuming the same set of facts, the attorney would receive the same amount as they would have had the case gone to court. The attorney is also receiving the same amount as if the case went to court but has typically had to do far less work.
| Total | Attorney Fee 40% | Patient | |
| Ongoing future medical costs that exceed the cap | $300,000 | $120,000 | $180,000 |
| Compesnatory Damages (assume Max) | $750,000 | $300,000 | $450,000 |
| $1,050,000 | $420,000 | $630,000 |
With the proposed reforms, the patient would receive $787,500, meeting the objective of the patient receiving the largest portion of the awarded damages.
| Proposed | Total | Attorney Fee 25% | Patient |
| Ongoing future medical costs that exceed the cap | $300,000 | $75,000 | $225,000 |
| Compesnatory Damages (assume Max) | $750,000 | $187,500 | $562,500 |
| $1,050,000 | $262,500 | $787,500 |
These scenarios are not the end of the story. Since damages are based on estimates, what happens to the patient should they need additional medical care not anticipated in the estimate, or they outlive the life expectancy used to determine future medical costs? The attorney has been fully compensated, but the patient has assumed this risk.
This is why the proposed reform returns to a pay-as-you-go system. This system was in place for 45 years and worked well. It was designed to ensure injured patients would have their medical expenses paid for as long as necessary.
A balanced medical malpractice system:
- makes injured patients whole
- provides reasonable compensation for attorneys
- treats health care providers fairly
- recognizes that the societal and economic costs of nuclear verdicts can result in catastrophic closures of healthcare facilities.
Other states have addressed malpractice effectively. New Mexico has not.
What’s Preventing Malpractice Reform?
In 2025, bills to enact reforms for medical malpractice worked their way through the committees of the State Senate and House of Representatives. Then one group surfaced to lobby against the reforms with campaigns of op-eds, newspaper advertisements, and social media posts.
New Mexico Safety Over Profit (NMSOP) argued that the proposed reforms would limit a harmed patient’s access to justice. No evidence was provided to support its position. Nevertheless, the group persuaded some legislators that the 2021 medical malpractice laws were needed to protect injured patients.
Daymon Ely is a board member of NMSOP. He is the legislator who introduced the 2021 bill raising caps on malpractice damages for hospitals from $600,000 to more than $6 million over a five-year period
In 2025, New Mexico State Ethics Commission sued NMSOP for refusing to comply with state law that required disclosure of funding sources for lobbyists. At first, the group refused to reveal its donors. Then, paying the maximum fine, NMSOP revealed its donor list. Trial lawyers, law firms, and one paralegal make up 100% of NMSOP’s donor list; over 74% of donors are current board members or past presidents of the New Mexico Trial Lawyers Association (also listed as a donor). You can see the full list at: https://www.thinknewmexico.org/
The State Ethics Committee complaint makes it clear that NMSOP is a lobby for the trial lawyers. NMSOP is focused on protecting the financial interests of its members: the trial lawyers. The reforms proposed in SB 176 during the 2025 legislative session would have given more money to patients involved in medical malpractice lawsuits and reduced the amount of money going to their attorneys.
The dark money group fighting malpractice reform in New Mexico | Searchlight New Mexico
New Mexico ethics commission lawsuit exposes dark money lobbying | Searchlight New Mexico
Robinson: Democrats Are On The Wrong Side Of Medical Malpractice Reform
Doctors: ‘We Are Exhausted and Demoralized’ | Opinion | riograndesun.com