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Lawsuit contends health order prompted surgery postponement

Copyright © 2020 Albuquerque Journal

The public health order restricting medical procedures is too vague, one New Mexico attorney says, and he hopes a lawsuit he filed for a Bernalillo County man will help clear things up.

The lawsuit also highlights how doctors and other medical providers are left to interpret state orders.

Edward Tsyitee filed a lawsuit in state District Court in Albuquerque on Wednesday against state Department of Health Secretary Kathy Kunkel because his doctors have told him that they can’t perform surgery to remove his gallbladder.

On April 6, Kunkel issued a public health order that put a temporary restriction on nonessential health care services, procedures and surgeries. Tsyitee, who suffers from gallstones, was scheduled to have the organ removed April 13, but on April 6, his doctor’s office called him and said his surgery was postponed indefinitely, the lawsuit states.

Tsyitee went to the emergency room April 15 for abdominal pain and other issues, and was once again told that he couldn’t have the surgery.

“Defendant Kunkel, acting under the color of the Public Health Act, has caused Plaintiff to be deprived of his due process right to the liberty to have a necessary medical procedure that can and will improve his quality of life, and reduce his risk of complications or death from the medical condition of his gallbladder,” the lawsuit states.

DOH spokesman David Morgan didn’t comment directly on the lawsuit, but he said in an email that the public health order was amended May 1 to allow nonessential, but medically necessary, procedures as long as state guidelines for preventing a shortage of personal protective equipment are still followed.

“And the original public health order about nonessential procedures in no way said they could not occur; it said physicians should postpone any procedure that could be postponed for three months without injury or harm to the patient,” Morgan said.

Tsyitee’s attorney, Blair Dunn, told the Journal on Thursday that he began working on the lawsuit before the health order was amended, but still filed it because the order is still ambiguous and doctors may fear misinterpreting it.

“I don’t know if doctors are going to feel comfortable going forward with these operational procedures,” Dunn said. “The order is as clear as mud for a lot of people. If it’s not an emergency, I imagine they’ll shy away from it.”

Dunn called Tsyitee the “valiant guinea pig” for any other New Mexican who may need a medical procedure. The suit asks the court to immediately deem the surgery necessary.

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