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.]