Paying for future medical care

New Mexico’s medical malpractice crisis has, deservedly, caught the Legislature’s attention. We’re seeing the numbers on our increasing shortage of physicians as doctors leave for places where it’s easier to make a good living.

Why does malpractice insurance cost doctors so much more in New Mexico than in the surrounding states?

Maybe this is a factor: Imagine for a minute that you have been injured through a doctor’s medical malpractice.

You will be entitled to future medical care for anything related to that injury for the rest of your life. That care is guaranteed by the New Mexico Patients Compensation Fund.

The fund is a component of the medical malpractice system, in addition to private malpractice insurance. It gets its money from a supplement to the medical malpractice premiums paid by the doctors, hospitals, etc. As I wrote recently, the unfunded liability in this fund is around $88 million. Last year the legislature appropriated $30 million. This year the request is for another $32.5 million. It’s also been suggested that the administrator of the fund could raise the premiums.

You could choose to get your injury-related medical costs covered by the fund for the rest of your life. Or you could choose a lump sum settlement and walk away with one very big check. The settlement would cover everything including the estimated cost of all that future medical care.

You would have to understand that when you get a settlement that includes future medical care, you become personally responsible for paying those bills. Even if you have other insurance, the insurance is not legally responsible for those costs.

So you have to save the money and be prepared to pay the bills.

Presumably you have an attorney. The law does not limit your attorney’s fee, which you would have agreed to in advance.

According to the experts who explained this to me, that attorney fee is typically 40% of the lump sum. So a big chunk of the money you are supposed to save for your future medical bills must be paid now to your attorney.

In discussing this with the experts, I went over this point again and again, because I could not make sense of it. You’re required to save the money and also required to spend part of it at the same time. Could this possibly be part of any rational system of delivering health care?

Medical malpractice is not unique in facing this type of situation. It also occurs in workers' compensation, which is the system I know best.

In workers' comp, the injured worker is entitled to lifetime medical care for the injury. There’s no cap on the cost of that medical care. Whatever is needed, no deductibles, no copays. Or the injured worker could choose a lump sum settlement, which would make him responsible for his future medical bills.

But there are provisions to contain other costs. Among those provisions is a statutory limit on attorney fees and a requirement that the fees have to be approved by a judge.

In workers' comp, New Mexico had a crisis 33 years ago that forced us to face the flaws in the system and take decisive action. Apparently we are not yet at that level of crisis in medical malpractice.

Possible conclusions:

One, this problem with the Patient Compensation Fund is part of the reason why New Mexico’s medical malpractice system is in crisis and doctors are leaving for other states.

Two, some people think the workers' compensation reform was a once-in-a century victory that cannot be replicated.

Three, this whole issue is about who gets stuck with the bill. If we had a rational healthcare system, it wouldn’t be necessary.

Contact Merilee Dannemann throughwww.triplespacedagain.com.