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New Mexico Lawsuit Challenges Texas Physician Immunity

Commentary:  Is a Texas physician subject to out-of-state medical liability laws if his patient files a negligence lawsuit in the patient’s home state? Which state’s medical liability law should apply — the state where the care took place, or the state where the patient lives?

That’s the question now before the New Mexico Supreme Court following a lower court ruling that New Mexico’s medical liability laws should apply to the case ofFrezza v. Montaño, a lawsuit in which a patient claims she was harmed by a physician. Texas surgeon Eldo Frezza, MD, performed bariatric surgery on a patient, Kimberly Montaño, in Lubbock in 2004. Ms. Montaño lives in New Mexico. At the time of the surgery, Dr. Frezza was an employee of the Texas Tech University Health Sciences Center (TTUHSC) in Lubbock.

If the New Mexico high court rules against the doctor, physicians say the impact would be great. As a Texas physician subject to New Mexico law, Dr. Frezza and other physicians wouldn’t enjoy tort reform protections the Texas Legislature passed in 2003. The ruling would also strip state workers of their immunity from being sued for work in the course of their employment by the state. Dr. Frezza worked for the State of Texas at the time of the surgery, explains Texas Medical Association’s (TMA’s) Texas Medicine magazine. The bariatric surgeon faces several similar suits filed in New Mexico — where the plaintiffs live — for surgeries performed in Texas.

West Texas physicians such as Dr. Frezza often care for New Mexico patients whose trip across the state line for medical care is shorter than going to Albuquerque. Doctors are closely watching the case, including members of the El Paso County Medical Society (EPCMS), whose physicians also often care for New Mexico patients. In a recent newspaper opinion column, Juan Escobar, MD, EPCMS’ immediate past president, said if the Supreme Court upholds the lower court’s decision, “The consequences will be higher liability insurance premiums, increased costs of practicing defensive medicine, and reluctance of new physicians to relocate [here] or stay in the area because of its proximity to New Mexico.” Dr. Escobar added, “In turn, this will increase the cost of providing care and reduce access for our patients in our already underserved region.” 

After her surgery, Ms. Montaño returned to Lubbock several times for Dr. Frezza to tend to postsurgical complications she experienced. The Texas physician is the only bariatric surgeon in the New Mexico Managed Care Plan.

Subsequently, Ms. Montaño sued both Dr. Frezza and the managed care plan in a New Mexico court. Ms. Montaño argued that her case should be tried under New Mexico law because her injuries manifested themselves in New Mexico. Defendants contested the ruling in a New Mexico Appellate Court, which ultimately agreed with Ms. Montaño, concluding the place of the wrong is the place where the injury manifested, not where the alleged injury occurred — at the Texas surgical facility. The court also determined the “choice of law” favored New Mexico since Texas’ tort laws are more restrictive, generally giving plaintiffs lesser awards.

The Texas Alliance for Patient Access (TAPA) submitted a legal brief to the Supreme Court in October to stop New Mexico law from applying to Dr. Frezza’s case. TMA signed in support of the brief, along with the New Mexico State Medical Society, the American Medical Association, and other physician organizations including several county medical societies.

The court’s decision could have a chilling effect on New Mexico patients seeking care in Texas, doctors warn. Lubbock physician Paul D. Walter, MD, said the outcome of the case will affect roughly 40 percent of his New Mexico patients. “If the Montaño ruling stands, I suspect a good many of my colleagues will reconsider providing elective care to New Mexico patients in order to avoid the increased liability risk. This is poor public policy and would be harmful to New Mexico residents denied care by Texas physicians.”

The New Mexico Supreme Court could schedule oral arguments by the spring of 2016.  The court could take six to 12 months to issue a decision.

TMA is the largest state medical society in the nation, representing more than 48,000 physician and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans.