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Medical malpractice suit pits NM against Texas

jacobsen_joel_BizOIn March, the New Mexico Supreme Court decided a medical malpractice case brought by a New Mexico resident against a surgeon employed at the Texas Tech hospital in Lubbock. The surgeon, a Texas state employee, allegedly botched the surgery. The decision wasn’t about the supposed medical negligence, but about whether the plaintiff could maintain the suit at all.

In a nutshell, under Texas law, a Texas court would have been obliged to dismiss the suit because it named the surgeon rather than his hospital as defendant. The question was whether New Mexico courts should enforce that Texas law.

Deciding that issue required the courts to explore the concept of sovereign immunity. That phrase sounds grand, but all it means is that states cannot be sued unless they consent to it. When a state agrees to allow itself to be sued, it is said to have waived sovereign immunity. People seeking to ridicule sovereign immunity claim it is founded on the principle that the king can do no wrong (usually expressed in the Latin tag rex non potest peccare). But practicalities do more than any Latin tag to explain the concept. It comes down to the basic democratic principle that the Legislature is the branch of government that determines how public funds will be spent. In both New Mexico and Texas, the state legislatures have waived sovereign immunity for torts by state employees, but in both states the legislatures impose strict procedural requirements to keep costs under control.

In the recent medical malpractice case, New Mexico courts had to decide whether to enforce one of Texas’s procedural requirements. In other words, they had to decide whether the disbursement of funds from the Texas treasury should occur according to rules laid down by the Texas Legislature or by New Mexico courts. A four-justice majority of our Supreme Court concluded that rule-making authority rested with the Texas Legislature. In the jargon, they “extended comity” to Texas.

The dissenting justice, Barbara Vigil, argued that Texas’ right to dictate the terms of its own waiver of sovereign immunity – its right to regulate the outflow of cash from its treasury – should be subordinated to New Mexico public policy. In her analysis, New Mexico’s public policy regarding sovereign immunity can be found in our own Tort Claims Act. To the extent that the Texas approach differs from New Mexico’s, therefore, it is contrary to New Mexico public policy. Boiled down, her argument was that comity should be extended to other states only when their waiver of sovereign immunity matches ours. Which, of course, would be the same as not extending comity at all.

But analyzing legal cases in terms of legal doctrine often misses the big picture. The commission of any tort represents the unreasonable imposition of costs on the victim. The costs may take the form of lost money (as with most business torts), physical injury, medical bills, pain, or the loss of a shared life with a loved one. It’s only fair that the person or organization responsible for imposing such costs should compensate the victim. Tort law has a second, regulatory aspect, too. It seeks to encourage people to behave responsibly by making negligence costly.

Justice Vigil’s bigger point, I think, is that it’s just not right that the compensatory and regulatory purposes of New Mexico tort law should be defeated by another state’s pleading requirements that seemingly serve no broader purpose at all. Seen in those terms, her argument seems compelling. But if it were accepted, it would mean a New Mexican treated in a Texas facility had greater claim on the Texas treasury than a Texan treated at the same facility, which makes no sense at all.

Many residents of eastern and southern New Mexico rely on Texas public hospitals for medical treatment. In particular, the nearest Level 1 trauma centers for many New Mexicans are the university hospitals in Lubbock and El Paso. One might even say that New Mexico is a bit of a freeloader when it comes to health care. The majority raises this point in more tactful terms, suggesting that “extending comity to Texas in this case will positively serve New Mexico’s public policy interests by encouraging the continuing cooperation of Texas and New Mexico in maintaining cross-border care networks.” In our dependent position, it’s not really in our interest to give Texas public health care providers a reason to discriminate against New Mexicans. There’s a Latin tag for that, too: noli manum pascentem mordere. Don’t bite the hand that feeds you.

Joel Jacobsen is an author and has recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at


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