The Case of the Disappearing Doctors - Part II

This column continues last week's discussion of our doctor shortage and suggests tougher steps some trial lawyers might oppose.

We should change the standard of proof required to get punitive damages. The tough criminal law standard is “beyond a reasonable doubt.” As juror, if you’re as sure of guilt as you would be to make a very important personal or professional decision, vote to convict. For criminal grand juries, deciding whether to indict, it’s “more probable than not.” Most civil cases use “preponderance of the evidence.” As I’ve told juries, “If there’s ten pounds of evidence on each side of the balance, and a feather falls on the plaintiff’s side, you must find for plaintiff.” Another is “clear and convincing evidence.” That means being quite persuaded, based on the evidence, but without the level of certainty required to put someone in jail. This heightened standard makes sense, because punitive damages are punishment (not just ordering defendant to compensate plaintiff for the damage defendant’s car did) but far short of jailing or killing someone. (Six states don’t even allow punitive damages in such cases.) Among the states that allow punitive damages, most use that standard. Why shouldn’t we? (Colorado uses the reasonable doubt standard for punitive damages!)

Changes to our Medical Review Commission could help. Not every state even has one. It should be mandatory in all medical malpractice cases – and have teeth. Essentially, an expert board of doctors, lawyers, and others votes on whether plaintiff’s case is viable. I know doctors where the vote was 6-0 that the claim was crap, but the plaintiff’s lawyers kept pushing it, hoping litigation costs and the threat of punitive damages and litigation costs would extort a settlement. (Note that these suits really hurt some doctors, not just financially.) Under California CCP §998, in any civil case, when one side makes a binding compromise offer or demand, citing §998, if the other side declines, and doesn’t get a better result at trial, that party has to defray the all the offering party’s costs and attorney’s fees after the spurned offer. That sure discourages frivolous litigation.

Trial lawyers will say that’ll also weed out a few suits by desperate folks, with devastating injuries, whose suits might look dubious to the experts but not to a jury. So, maybe tinker with my suggestion. Have a unanimous vote against the case trigger the provision; or, after a 0-6 vote, let the panel vote whether or not to impose the provision; or make the possibly frivolous litigant

(or attorney) pay half the other side’s fees thereafter, not the whole. Lawyers often say, “We have the American rule, not the British, where losing litigants pay the winners’ fees. The British system can prevent less wealthy people from bringing suit.” I like our system. But we have plenty of exceptions. This should be one. I’d argue that some trial attorneys abuse our system by using bogus claims to extort unduly rich settlements.

I would not cap awards. For one thing, the small number of doctors generating a disproportionate number of successful suits suggests leaving punitive damages uncapped. Because New Mexico's Medical Malpractice Act caps compensatory damages at $750,000, patients rely on punitive damages to force hospitals to take action against problem physicians. Further, the hospital might have been negligent in continuing to allow the physician to practice here. Let’s punish that.

My suggestions could be effective – and perhaps achievable.

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[The above column appeared Sunday, 25 January 2026, in the Las Cruces Sun-News and will presently appear on the newspaper’s website and on KRWG’s website (under Local Viewpoints). A shortened and sharpened radio commentary version of this Sunday column will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). ]

[First of all, apologies to the newspaper and readers for three typos I didn’t catch in this, until a friend called me to point them out: most significantly, I’d written in “acquit” when I meant to write “convict” in discussing the “beyond a reasonable doubt” standard; I left punitive damages in singular form; and a sentence later on about CCP §998 was murkier than it should have been. Thanks to my helpful friend.]

[ I hope, taken together, the two columns help enrich the discussion of an issue that matters to most of us. I feel like most of the people who know a lot about it are in such entrenched opposition, vilifying each other and keeping their ears closed. That’s not usually a good sign.]

Solving the Mystery of the Disappearing Doctors - Part I

How should New Mexico deal with our deepening doctor shortage?

It’s a national problem, but especially bad here. Reasons include our sparse population, the paucity of each year’s UNM Medical School graduates, the high number of hospitals here owned by private equity, our gross receipts tax, and our relatively high malpractice insurance rates. Too, many people here are on government insurance, which tends to reimburse providers at lower rates.

During 2019-2024, New Mexico was the only state with a net loss of physicians. All New Mexico counties but one are are classified as Health Professional Shortage Areas. Our doctors’ older average age means we’ll see higher retirement figures than most states.

I like Senator Bill Soules proposal to use a small amount of our permanent fund to increase residencies for doctors here. The feds fund those, but there aren’t enough. Many doctors stay where they did their residencies. In those years, one makes contacts and friends, finds the good tennis or poker games, or maybe marries someone local. But this would have no immediate impact.

In 48 states, a doctor isn’t required to charge patients gross receipts tax. Patients pay less and doctors have no irritating and time-consuming state GRT paperwork. This isn’t the major factor in doctors’ selections of states; but it’s an unnecessary burden, unfair to patients, and wholly in the state government’s hands.

Another obvious problem is our disproportionate number of private-equity-owned hospitals. Some physicians seek to escape corporate limits on the time they can spend with patients. Some have told me of hospital quality control being minimized. Prior research taught me that safety concerns and overall results decline when private equity takes over a hospital. New Mexico has the highest proportion of private equity-owned hospitals in the country at 38%, compared with a national average of 8%. One Albuquerque medical malpractice attorney, testified to a legislative committee hearing that medical negligence occurs more often in New Mexico because of this high number of private equity-owned hospitals. (I’m agree!) She suggested a Corporate Practice of Medicine statute guaranteeing providers more autonomy and requiring safe nurse-to-patient ratios.

The real tension is between folks who would end or cap punitive damages, or otherwise limit patient’s rights, so as to decrease the high malpractice insurance rates that contribute to physicians leaving and new physicians avoiding our state. (Even if reformers exaggerate this problem, as trial lawyers insist, it exists.) New Mexico has a very high number of such lawsuits, per capita. Some folks are suggesting draconian measures. Trial lawyers – for a mix of good and bad motives – are pushing back. Reformers wrongly demonize the trial lawyers; but trial lawyers are significant players in our state government, and they got on the wrong side of the Ethics Commission by trying to hide an advocacy group’s funding. I hate everyone, but have some suggestions.

I like the suggestion that we allow doctors to apologize and explain without having that hung around the doctor’s neck by plaintiff’s lawyer. When patients whose surgery has gone wrong feel unheard, or disrespected, that can encourage litigation and render it more bitter. Some bad results are not mistakes. If 1% of patients have some negative side effect, someone’s in that 1%. Doctors should be able to express sadness about what happened without having that used against them at trial.

This topic won’t fit in one column. My suggestions regarding litigation will appear next Sunday, in Part II.

                                                   – 30 – 

 

[The above column appeared Sunday, 18 January 2026, in the Las Cruces Sun-News and will presently appear on the newspaper’s website and on KRWG’s website (under Local Viewpoints). A shortened and sharpened radio commentary version of this Sunday column will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). ]

[As noted, this is Part I of my comments on this complex situation. I’m no expert; but I’ve had the benefit of discussing this on radio with folks who are, and of sitting in on a recent meeting between a key legislator and three articulate doctors that featured frank and thooughtful discussion. ]

An Illegal and Unwise Invasion

Donald Trump’s invasion of Venezuela has no lawful basis, no ethical basis, and will help fracture international alliances we depend on.

It broke international law. Trump hasn’t seriously tried to argue otherwise.

Starting a war without Congressional approval seems to violate US. law. Not only invading and kidnapping the country’s president, but seizing oil tankers and massacring fisherman amount to acts of war.

The administration claims this was lawful armed-forces assistance to a law-enforcement action, since Maduro had been indicted on drug charges. Trump’s regime-change rhetoric and talk of “running Venezuela” for its petroleum negate that excuse. (They’ve had to admit that Trump’s oft-repeated claim that Maduro ran a drug ring, Cartel de los Soles, is nonsense. That group doesn’t exist.)

This was never about saving US. lives: fentanyl doesn’t come here from Venezuela, cocaine doesn’t cause that many overdoses, and if Trump cared deeply about bringing drug-runners to justice he’d not have pardoned Juan Orlando Hernandez, who was tried and convicted of doing, as Honduran president, what Maduro is alleged to have done.

It’s not about human rights or Venezuelan democracy. Mr. Trump has clearly said that if Maduro’s vice-president will give the US. Venezuelan oil, she can stay in power. No freeing of political prisoners we supposedly cared deeply about.

It’s about the oil, to which we have no legal or moral right.

It will also have more negative consequences than Trump can imagine. First, “running Venezuela” might immerse us in just the sort of long-term struggles to run a divided country that Trump promised to extricate us from.

Combined with his bullying comments about taking Greenland, Cuba, Canada, and maybe Mexico, it changes the international scene in three important ways: it threatens further fracturing of international alliances; claiming this is our “sphere of influence,” essentially concedes Taiwan to China and Eastern Europe to Russia. Further, whatever vestigial shred of credibility “American exceptionalism” had, Trump tossed in into the ashcan. We are more blatantly than ever as selfish and unjust as any other empire, not some exceptional democracy seeking a better world. We won’t even keep our people healthy!

Trump’s bullying of allies, and his bizarre, possibly dementia-caused conduct and verbiage, has everyone worried. Europe has made noises toward an independence defense force, partly because Trump’s Putin-crush undermines US. support for Ukraine against Russian aggression, which endangers Europe too.

Garnering fewer headlines is Canada’s Trump-inspired declaration of independence from the US. NORAD and other common defense activities have been unusually close, cooperative, and efficient. Now, however, Canada has not only announced big-time defense-spending, it is dealing with European entities, and refusing to use US.-made systems the US. could help run. Canada will own the intellectual property. That is, in a pinch, while Canada may share information with us, we won’t be getting that information automatically and running the system. In a smaller and smaller world, with climate craziness melting northern ice, that’s a whole area of security we had a great handle on as long as Canada trusted us; but who would trust Trump? Even if one wanted to dismiss his “I’ll make Canada our 51^st State” [presumably with two senators, like Wyoming] rhetoric as age-related and innocent, when he combines it with invading another nearby country, without lawful basis, and threatening others . . . man, I’d want my own defense system. I might need it against the US.!

None of this makes the US. “great.”

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[The above column appeared Sunday, 11 January 2026, in the Las Cruces Sun-News and on the newspaper's website and will presently appear on KRWG’s website (under Local Viewpoints). A shortened and sharpened radio commentary version of this Sunday column will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). ]

Imagine a 1950s Family Watching an Imaginary Future President Misbehaving

There’s a new Netflix series, Gratitude, set in the 1950s.

All the men still wear hats. There’s a family – say, the Homburgs -- much like the Cleavers. Father supports the family and knows best. Mom sweetly manages everything. The kids are mischievous, but not bad.

Each episode, the Homburgs watch a futuristic and slightly frightening TV series set in 2020, when people all have little private scooter-planes that fly them quickly and safely to their destinations. (Let’s call the series “2020,” meaning both the year and seeing stuff clearly.) There are no aliens or spaceships, just regular people doing incredible harm without Bodysnatchers or Godzilla.

The Homburgs watch weekly, fascinated. It’s so funny and real, yet absolutely impossible, that they can’t wait to see what incredibly stupid thing the characters will do next. Every half-hour installment, they’re exhausted from laughing ‘til they cry, while also cringing.

In 2020, people are angry, and news is controlled by rich corporations. People sense that wealth rules them. They’re angry. So the rulers get the people to elect a rich man hoping to get richer, who loves admiration, but doesn’t know or care much about running a country. He’s angry, and the angry people all vote for him. (That’s dumb, like most sitcoms. The Homburgs know it’s just television.)

In one episode, the President loses an election, and actually tells election officials to “find me more votes” in a critical state, an obvious crime, and conspires with supporters to invade Capitol Hill to scare Congressfolk out of counting the vote. (The Homburgs laugh at their younger son, who believes this could actually happen!) When the FBI says the Soviet Union tried to rig the vote, the President tells Khrushchev that he believes Khrushchev’s denial. When he wins re-election four years later, he appoints people so unqualified that they’ll agree with whatever he says. Including as a defense secretary an actor who played one in the movies.

The Homburgs know President Eisenhower, in whose eight years the sole scandal was an aide, Sherman Adams, accepting rugs, jewellery, and a vicuña coat from a company under investigation. They can’t believe the fictional presidents’ aides get $1 million for advocating pardons for criminals. The President pardons a huge drug czar while blowing fisherman out of the water because they might be carrying drugs.

In the Homburgs’ world, the Salk vaccine has just eliminated polio. Kids still get measles and mumps. Mumps can be serious when adults catch it. By 2020, vaccines have eliminated both; but the goofy president appoints a health secretary who works to revive them.

Congress has named a national fine arts center after a tragically assassinated president. The fictional president unlawfully adds his name! Meanwhile, he insists that performances be limited to artists and shows he approves of, and threatens to arrest season-ticket-holders who fail to attend. Artists immediately cancel performances.

Of course, he sees his second term as a chance to avenge insults, ensure no appointees have a shred of independent conscience, and eliminate legal watchdogs, so as to dictate to the population more and more openly. Absolute power corrupts absolutely, and he didn’t start with much conscience or compassion. The Homburgs look at each other in amazement as the season ends, with new elections – maybe – planned for the start of next season.

“Why is the new series called Gratitude?”

“Because the Homburgs are so grateful they don’t have to live through this.”

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[The above column appeared Sunday, 4 January 2026, in the Las Cruces Sun-News and on the newspaper's website and will presently appear on KRWG’s website (under Local Viewpoints). A shortened and sharpened radio commentary version of this Sunday column will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). ]

[Happy New Year, everyone! By the way, I liked this when I sent it in the other day; but it seems pretty silly in light of Mr. Trump’s wholly illegal war with Venezuela.]

[Obviously I made this “Netflix series” up. But it’d be a hell of a series, seeing this dangerous madness through 1950s eyes. If Rod Serling or someone could have imagined Trump back then, we would have laughed our asses off at how preposterous this would be. Obviously the damage and lost lives outweighs the comic aspects, even though it now appears more likely than it once did that the country will avoid a permanent dictatorship that starts with Trump and continues with younger, smarter folks invoking his name and “policies.” ]

If anything, the column understates how floored grownups in the 1950s would have been – although, as they’d witnesses Hitler’s Germany, and some had fought in a war against the Nazis, they might not have found it funny.

At the same time, while it’s fun to make fun of the Donald, two important points need saying:

1. We are locked in a transformation into a much deeper imbalance of power and money than we’ve ever known before, that is not good for even the rich folks doing it, and Donald Trump is a pimple on the ass of that transformation: helping it along, but he didn’t start it or think it up, and will be off the stage soon enough, given his corpulence, bad temper, and failing cognitive abilities. And the ambitious greed of those lurking in his wake, such as Mr. Vance. He’s not quite a distraction; but being overly delighted that we slapped this fly off our national nose, should we succeed in doing that, could distract us focusing on the deeper sorts of change we need.

2. Although the 1950s were in some ways superior [ we taxed the obscenely wealthy at a more extreme rate that came closer to justice and made for healthier national economy, for example; and folks in government made some effort to govern; and we weren’t so hyperpartisan]; but in other ways, no! Not only were we about to make serious efforts to improve the lot of ethnic minorities, women, and, not too much later, folks with unconventional genders or sexual tastes, but our foreign policy, at least as regarded Latin America, was made by and for United Fruit Company. And we destroyed democracies around the world in the name of freedom. This was not a paradise, and although we covered our actions with cleverer stories than Mr. Trump does, we were doing a lot of very bad things to a lot of others, only a small amount of which could reasonably be justified by the threat Russia (the Soviet Union) then posed to us.

So let’s be clear: Donald Trump is an obscene development damaging to our national security, our society, our democracy, and our environment, but HE IS NOT THE PROBLEM. We need to move on from him, in an appropriate lawful and peaceful manner, but then, rather than celebratory toasts, we need to help our compatriots focus on what is really happening here. Failing that, the folks making out like bandits will continue to pit us against each other, by telling the credible that its all the fault of Somali welfare cheats (not obscenely wealthy tax cheats, who cheat far more cleverly) or gays, that the interesting issue of who should be allowed on girls’ athletic teams is more urgent than taking back control of our country, improving our economy for all, and even managing a health care system that works, as other nations have. ]