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NM residents treated by Texas docs can’t sue here

SANTA FE – The Legislature came up with a remedy – for now, anyway – to a legal controversy that was clouding the future for New Mexicans seeking health care in neighboring Texas.

Lawmakers passed, and Gov. Susana Martinez signed, a bill that could keep New Mexicans who are treated by Texas doctors from suing them for malpractice in patient-friendlier New Mexico courts.

The issue arose because of a lawsuit that is pending in the New Mexico Supreme Court. It has caused a stir in the medical community and prompted warnings that health care providers in Texas would stop taking New Mexico patients.

The negotiated agreement that emerged from the recent legislative session allows for Texas doctors, hospitals or other health care providers to have their New Mexico patients sign statements accepting the jurisdiction of Texas courts in the event they wanted to sue.

New Mexico courts would have to honor those agreements and not hear those cases, under House Bill 270.

But in a key compromise, the new law, which takes effect July 1, expires in July 2019.

“We have a temporary solution to the problem that will last three years,” said Rep. Terry McMillan, R-Las Cruces, a physician and the bill’s sponsor.

McMILLAN: "We have a temporary solution"

McMILLAN: “We have a temporary solution”

By that time, the state Supreme Court should have ruled in the pending case and it would be clearer whether the legislation remains necessary, McMillan said.

The original version of McMillan’s bill passed the House 34-27, with Republicans in favor and Democrats opposed, and then stalled in the Senate Judiciary Committee. That’s where negotiations occurred and a compromise between medical groups and the New Mexico Trial Lawyers Association was reached that included the three-year sunset. The Senate then passed the revised bill unanimously, and the House agreed with the compromise.

“It was a tough battle. … We had to either come up with a solution or see if physicians were really going to stop seeing New Mexico patients,” said Randy Marshall, executive director of the New Mexico Medical Society.

The new law, effective July 1, does not affect the pending state Supreme Court case. It applies to claims arising from incidents that occur as of July 1.

The case that caused alarm on both sides of the state line involves a New Mexico woman who claims her 2004 gastric bypass surgery was botched by a Texas Tech University surgeon – to whom her New Mexico insurer referred her – and sued him in New Mexico courts.

The doctor claimed he has immunity under Texas law, but the New Mexico Court of Appeals said applying the Texas law would violate New Mexico’s public policy because the Texas law is much narrower.

Texas bars lawsuits against individual state employees, for example, and has lower caps on awards and stricter statutes of limitations.

Kathy Love, president of the New Mexico Trial Lawyers Association, described the Texas law as “extremely weak.”

“Of course, it’s important for all New Mexicans to have access to health care, but I also think it’s very important to have access to safe health care,” Love said, noting that the Texas doctor had been sued by at least three New Mexico patients.

Doctor and hospital groups contended that if New Mexico patients could sue in their home state for treatment they got in Texas, Texas providers would stop seeing patients from New Mexico because of the increased risk of litigation and the prospect of increases in their malpractice insurance premiums.

“We would have had a medical care situation that was untenable for New Mexico,” said Senate Republican Leader Stuart Ingle of Portales, who sponsored the Senate version of McMillan’s bill.

Ingle has had firsthand experience with being treated out of state: He was taken to Texas for surgery in 1995 after a brain aneurysm.

According to information provided to legislators by the New Mexico Medical Society, 2013 data from health departments in the two states indicated that 13 counties in southern and eastern New Mexico sent more than 22 percent of their hospitalized patients to Texas for care.

Love said the trial lawyers were concerned that the legislation was a response to an overstated “sky is falling” scenario, “that people were pushing to find a solution to something that really wasn’t a huge problem.”

But she also said it was clear that Texas doctors were concerned, and the trial lawyers group didn’t want New Mexicans to be denied treatment.

Having the new law in place for three years “basically buys us some time” to see how the Supreme Court rules in the pending case, she said.