The Doctor’s Advocate | Second Quarter 2021
Government Relations Report

Advocating for a Medical Profession Under Attack

Elizabeth Y. Healy, Assistant Vice President, Government and Community Relations, The Doctors Company

Advocating for our members has been at the core of The Doctors Company’s mission since our inception. The Doctors Company has played an instrumental role in the passage of historic medical liability tort reform legislation on behalf of doctors and allied healthcare professionals nationwide. We continue to fight to enact, preserve, and defend medical liability reforms through legislative and judicial advocacy.

Each year, we track thousands of legislative bills and dozens of appellate judicial cases on behalf of our members. We work with wide-ranging coalitions that can include medical and specialty societies, business groups, and industry and trade groups to advocate on behalf of our members and their patients.

Increasing Attacks

Even as COVID-19 has created additional pressures on the healthcare profession, we have seen a tsunami of legislation and court cases attacking the practice of medicine and medical liability reforms in the first half of 2021. Despite our best efforts and those of our allies, too many of these attacks have been successful.

Over the years, one of the tactics used by trial lawyer associations to gain an advantage in legislative battles is to recruit trial lawyers and their allies to run primary challenges against legislators who are supportive of medical liability reforms. Too often, the trial lawyers succeed in these efforts because they have a significant fundraising advantage over groups allied with healthcare professionals. The trial lawyer associations then use these successes to threaten lawmakers: If the lawmakers vote in favor of medical liability or other tort reforms, they will be next on the list to be electorally challenged and unseated by the trial lawyers’ political muscle.

Associations representing healthcare providers—such as The Doctors Company and medical, specialty, and hospital associations—have fought back every step of the way. We advocate for our members and their patients through the legislative process and in the courts. We also provide political support to elect and reelect legislators who support healthcare providers and their patients’ access to healthcare. But these efforts have become increasingly difficult in recent years as memories fade from the last medical liability crises. New legislators and many healthcare providers have not yet experienced a medical liability crisis.

Although we have been able to mitigate or reduce the harm of some legislation supported by trial lawyers, too often we have been unable to prevent or eliminate it. When we are not successful, patients ultimately pay by having their access to healthcare reduced.

Physicians providing care to underserved patient populations, rural areas, and Medicaid patients are the most affected by increased medical liability costs. Because these providers have no way to offset the increased costs through additional reimbursement, their only options are to reduce the number of underserved patients they treat in favor of patients with private insurance, reduce their scope of practice to reduce risks, or retire prematurely. This type of situation often leaves entire communities without access to specialists, such as obstetricians or surgeons, who are willing to accept high-risk patients.

Trial Lawyer Tactics

One example of a trial lawyer tactic includes legislation that was years in the making in New Mexico. The state’s trial lawyer association had been pushing legislators to enact legislation that would remove hospitals from the state’s medical malpractice act protections and significantly raise or eliminate the $600,000 cap on nonmedical damages for individual providers and outpatient health centers. (Awards for past and future medical care for patients in New Mexico are unlimited.)

After a previous failure to raise the nonmedical damage cap on lawsuits against doctors to $2 million and against hospitals to $25 million, the lawyers sought to ensure that several senators who had voted to protect doctors and their patients would not be reelected. The trial lawyers were successful in supporting primary election challenges and replacing those state senators with individuals they believed would be more likely to vote in favor of eliminating medical liability reforms. The trial lawyers have also provided significant electoral support to the governor of New Mexico.

Faced with a legislative session in which the trial lawyers’ favored legislation would have the votes to pass and the backing of the governor, the coalition of organizations representing healthcare providers had no other choice than to negotiate with a proverbial gun to its head. These negotiations allowed the coalition to salvage some protections, although the resulting legislation is devastating to New Mexico’s medical professionals and their patients.

If the coalition had not participated in the negotiations, nothing would have stopped the trial lawyers’ allies in the legislature from stripping every single existing protection from healthcare providers. Even so, the enactment of House Bill 75 will lead to a new medical liability crisis in New Mexico that will have a dire effect on a population that is already suffering from a critical lack of access to healthcare—particularly in the poor and underserved communities that make up a majority of the state’s population.

Recipe for a New Crisis

The continued weakening of medical liability reforms combined with increasing runaway verdicts and costs to defend claims is a recipe for a new medical liability crisis. We must come together to educate lawmakers about the benefits of medical liability reform to support the healthcare of their constituents. We must also work to help elect and reelect lawmakers who understand the nexus between healthcare liability protections and access to healthcare for the underserved.

Learn more about advocacy in your state and find out how you can help us protect medical liability reforms for all healthcare providers by visiting our Legislative, Regulatory, and Judicial Advocacy page.

See more issues