NM vs. Texas – whose law wins?

Copyright © 2016 Albuquerque Journal

A February 2004 gastric bypass surgery in Lubbock, Texas, on a New Mexico resident is at the heart of a legal controversy that could have far-reaching implications for New Mexico patients and Texas doctors who treat them.

The case raises the question of whether the woman who claims her surgery was botched by her Texas Tech University surgeon should be able to pursue her medical malpractice claim in New Mexico courts under New Mexico law.

If Texas law applies, Kimberly Montaño, the Curry County teacher who said she had the surgery in Texas because that was the only way her insurer would cover it, is almost certainly out of luck. That’s because Texas law bars lawsuits against individual state employees such as Dr. Eldo Frezza, then chief of bariatric surgery at Texas Tech University Health Sciences Center, who performed the procedure.

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If New Mexico law prevails, Montaño would be allowed to pursue her case for damages in New Mexico courts.

a01_jd_11jan_montano2Doctors and hospitals in both New Mexico and Texas say such a decision could have a disastrous effect on patient care in eastern New Mexico, where doctors are scarce, and could lead to Texas providers being reluctant to care for New Mexico patients for fear of being sued. But the plaintiff and New Mexico trial lawyers take aim at Texas’ tort laws, which are far less plaintiff friendly, arguing that if Texas law applies it would “finish off Ms. Montaño’s case … (She) would have no forum in which to pursue redress for the severe and permanent harm to her.”

“While New Mexico has developed a public policy favoring recovery for injured parties, Texas has done the opposite, developing a system of medical liability laws hostile to its citizens injured as a result of medical negligence,” the trial lawyers argue. “The merits of Texas’ choices are not at issue here … but New Mexico has made different choices.”

A state District Court and the New Mexico Court of Appeals both concluded that the immunity allowed under Texas law “would in fact violate New Mexico’s public policy,” the filing says.

The New Mexico Supreme Court has agreed to review the case.

‘Dire’ and ‘disastrous’

The number of players weighing in demonstrates the high-stakes nature of the issue. Three amicus briefs have been filed: by New Mexico Trial Lawyers, the University of Texas and a loose coalition of more than 24 doctor and hospital associations, including the University of New Mexico School of Medicine, the New Mexico Medical Society, the Texas Hospital Association, Texas Medical Association, American College of Emergency Physicians and the Texas Alliance for Patient Access, which even created a website to promote its position.

a01_jd_11jan_montano1The doctor and hospital groups predict that letting the appeals court ruling stand will wreak havoc on an already challenged medical care system throughout eastern New Mexico, where residents are frequently referred to West Texas hospitals and providers.

“Dire” and “disastrous” are among adjectives they use to describe potential effects if the two prior court rulings are allowed to stand.

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Briefing before the Supreme Court won’t be completed until sometime in February, but Frezza’s listed lawyers, who include a New Mexico law firm and the Texas attorney general, have asked for oral argument once all the filings are submitted.

They say the lawsuit must be filed where the alleged harm occurred – Texas – while the two New Mexico courts said that the injury “manifested itself” in New Mexico, so venue is proper here.

Pain only got worse

Montaño’s lawsuit was filed in 2011 in Albuquerque. In it, Montaño says she complained of abdominal pain soon after the 2004 surgery and returned to Frezza, who told her discomfort was normal and all was well.

But her pain became so severe that she was admitted to various other medical centers multiple times, until in 2010 she had a procedure by a different doctor who found that Frezza’s surgery “had left a tangled network of sutures” that caused the pain.

Despite a surgery to repair Frezza’s alleged negligence, Montaño says she was damaged by having an infection, the need for lifelong care from a gastroenterologist and a shortened life expectancy, along with lost wages and medical costs. She is seeking recovery for that, plus punitive damages not allowed under Texas tort law.

She claims Lovelace was negligent in requiring all bariatric surgery patients to see Frezza, and negligent for not having done an adequate review of him to learn that he was “incompetent to provide surgery and was a menace to his patients.”

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Frezza’s attorney Dana Hardy said the surgeon denies the allegations and contends that he met the standard of care.

Both Lovelace and Frezza sought dismissal of the lawsuit, but state District Judge Shannon Bacon of Albuquerque denied the motions.

Frezza asked her to reconsider her ruling about whether a New Mexico court has jurisdiction over him. Montaño said in response that she “and numerous other individuals have suffered severe and permanent harm” as a result of surgeries performed by him.

Montaño was told by Lovelace, and three other plaintiffs were told by Presbyterian Healthcare, that their insurance benefit would require them to go to Texas for treatment, a court filing says.

“The crux of this matter is that Dr. Frezza had some kind of arrangement or special relationship from which he gained financial benefit through drawing New Mexico citizens out of New Mexico,” Montaño’s response said.

Unintended consequences

The doctor/hospital briefs argue that upholding the decision “will have dramatic public health repercussions and will result in the unintended consequence of reducing access to medical care for the citizens of Eastern New Mexico.”

They describe a Texas medical liability crisis in the 1990s that led to the withdrawal of insurance companies from the Texas market before sweeping legislative restrictions in 2003 that placed strict limitations upon where, when and against whom claims could be filed.

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The doctor/hospital groups say the appellate decision in Montaño is based “only on a public policy consideration benefitting the plaintiff, without consideration of the state’s public policy favoring access to care for all of its citizens.”

Trial lawyers counter that such verbiage is nothing more than “scare tactics … a parade of horribles.”

“There are simple, practical solutions to the problems on which they speculate,” their response says.

For instance, Lovelace could agree to indemnify physicians for claims under New Mexico law or require physicians to have enough insurance to address any potential claims under the New Mexico Tort Claims Act.

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