Editorial: Subjecting out-of-state M.D.s to NM law risky

A medical malpractice lawsuit filed in Albuquerque by a Curry County woman who had gastric bypass surgery in 2004 at the Texas Tech University Health Sciences Center in Lubbock has sent a thorny question to the New Mexico Supreme Court.

While it would seem reasonable that Kimberly Montaño should have the ability to pursue a medical malpractice claim, a decision in her favor could have a chilling effect on all New Mexicans’ ability to access health care outside the state – and not just the many eastern New Mexico residents who rely on Texas health care providers because of shortages in the area.

Kimberly Montaño went to Texas Tech University because that’s where her insurer at the time, Lovelace Insurance Co., told her she had to go if she wanted her surgery covered. She claims to have had life-affecting complications and is suing her surgeon, Dr. Eldo Frezza, who was chief of bariatric surgery at the TTU Health Sciences Center.

Montaño has filed her lawsuit in New Mexico seeking to recover losses and punitive damages not allowed under Texas law. Medical malpractice laws differ by state and in Texas, state law bars lawsuits against individual state employees, which Frezza was at the time.

Frezza’s lawyers and the Texas attorney general say Montaño’s lawsuit has to be filed where the alleged harm occurred – in Texas. However, a New Mexico state District Court judge and the Court of Appeals have said that because the injury “manifested itself” in this state, the case can be heard here.

Not surprisingly, doctors and hospitals in both states are lined up against allowing patients like Montaño to file here, contending if the New Mexico rulings stand, Texas doctors and providers may refuse to treat New Mexico patients.

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Which begs the question: Why would any out-of-state doctors want to treat New Mexicans if they know they could face lawsuits in a state that has no connection to their practice or where the procedure occurred?

In theory, patients who suffer harm due to negligent medical procedures should have some way to be made whole. But the end result of holding out-of-state medical providers to New Mexico laws would likely be to limit options in a state already dealing with shortages.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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