The New Mexico Supreme Court ruled Monday
in favor of a Lubbock physician entangled in a question of whether Texas or New
Mexico law should apply in a liability case involving care that was provided in
Texas but for a New Mexico patient.
The decision is a victory for TMA, West Texas physicians, and
organized medicine in Texas and New Mexico. Although the specifics of the
verdict applied to a Texas physician who was employed by a government
institution, TMA’s General Counsel opines that the ruling should be helpful to
all Texas physicians treating patients from New Mexico traveling to Texas. This
is because the Texas 2003 medical liability reforms are generally more
favorable that those in place in other states.
The case, Montano v.
Frezza, involved Kimberly Montaño,
a New Mexico resident, who sought surgery in 2004 from Eldo Frezza, MD, a
Lubbock bariatric surgeon and professor at Texas Tech University Health
Sciences Center. The issue was over which state’s medical liability laws would
prevail in a case in which a New Mexico resident received care in Texas but
claimed complications after returning to New Mexico. For additional details on
the case, see "Border Battle," from the November
2015 issue of Texas Medicine.
Dr. Frezza told TMA he was exhausted by the fight but elated
by the ruling.
“The lawyers have to understand how their activity is
affecting patients, not just physicians,” he said. “This lawsuit was affecting
tons of patients in eastern New Mexico. A lot of good people, working people,
people who pay taxes are affected by the blindness of our society.”
Howard Marcus, MD, chair of the Texas Alliance for Patient
Access (TAPA), which was one of several Texas groups that filed briefs in the
case, also hailed the decision.
“Yet again, TAPA, working with its member organizations,
such as the TMA and county medical societies, has prevailed in a crucial
decision that promotes access to care across the Texas-New Mexico state line,”
Dr. Marcus said. “Common sense and logic have prevailed.”
The Texas Medical Liability Trust (TMLT), University of
Texas System, and New Mexico Medical Society also filed briefs in support of
Dr. Frezza’s position.
The 4-1 decision “only considered the issue of comity – that
is respecting the sovereignty of sister states,” said Jill McClain, TMLT executive
vice president for government relations. The court’s analysis of that issue
focused heavily on data that TAPA, TMA, TMLT, the American Medical Association,
several county medical societies, and others provided showing how much
residents of eastern New Mexico depend on West Texas physicians and hospitals
for care.
“Access to cross-border health care for individuals living
in rural parts of New Mexico is an additional consideration that tempers New
Mexico’s interest in applying its law to this case,” the court majority wrote.
“We do not consider it overly speculative to conclude 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.”
Although the court ruled in favor of the Dr. Frezza in this
instance, TMA suggests physicians continue to avail themselves of the law New
Mexico enacted last year allowing them to obtain a signed agreement from New Mexico patients stating that should
they wish to file a lawsuit they will do so in Texas court. To help physicians take
advantage of the law's protections, TAPA developed two forms, one for emergency
treatment and one for voluntary treatment. You can download the emergency
treatment and voluntary treatment forms (English or Spanish-and-English) from the TMA website.
In consultation with an attorney, TMA suggests physicians who
treat New Mexico patients or patients living in other states consider adopting this
language in the practice forms patients sign.
