Texas physician Eldo Frezza, MD, is facing a negligence lawsuit filed in New Mexico, but he has organized medicine on his side. Frezza v. Montaño has reached the New Mexico Supreme Court after lower courts ruled New Mexico law should apply to the case.
The Texas Alliance for Physician Access, the New Mexico Medical Society, the Texas Medical Association, the American Medical Association, and many others, including several county medical societies, are joining to submit a friend-of-the-court brief to the Supreme Court on behalf of Dr. Frezza's effort to stop New Mexico law from applying to the case. The Texas Medical Liability Trust is also submitting an amicus brief.
In 2004, Kimberly Montaño, a New Mexico resident, traveled to Lubbock to undergo bariatric surgery, performed by Dr. Frezza, who was an employee of Texas Tech University Health Sciences Center. During the ensuing six years, Dr. Frezza performed follow-up care for complications related to Ms. Montaño's surgery. All of the care Dr. Frezza rendered occurred in Texas. Dr. Frezza's only direct connection to New Mexico was that he was listed on the Lovelace New Mexico Health Plan. Reportedly, he was the only bariatric surgeon listed on the Lovelace plan.
Subsequently, Ms. Montaño sued Dr. Frezza and Lovelace in a New Mexico court. Ms. Montaño argued her case should be tried under New Mexico law because her injuries "manifested" themselves in New Mexico. This was contested in a New Mexico Appellate Court, which agreed with Ms. Montaño, concluding the "place of the wrong" is the place where the injury "manifested" and not where the alleged injury occurred, at the surgical facility. Also, the court determined the "choice of law" favored New Mexico since applying Texas' more restrictive tort claims act violated New Mexico public policy that provides a greater remedy for plaintiffs.
Even though Dr. Frezza was not an employee of the state of New Mexico, the court elected to treat him as if he were. The court's ruling affects all Texas state and local government employees. If affirmed by the New Mexico Supreme Court, the Montaño appellate court decision likely would serve as a precedent for expanded New Mexico-based liability for Texas physicians in private practice, as well. The Texas caps on noneconomic damages likely would not be applied in subsequent cases if an alleged injury "manifested" itself in New Mexico and the suit was filed in New Mexico. Texas limitations on liability likely would be found to be against New Mexico public policy.
You can help TMA help Dr. Frezza and other Texas physicians who might find themselves in similar circumstances. Do you treat New Mexico residents in your practice regularly? What would happen if Texas liability protections no longer applied for the services you provide to men, women, and children from New Mexico? How would it affect your practice? TMA can share your information with the court. Please write your story on your practice letterhead and fax it to TMA at (512) 370-1693 as soon as possible.
The New Mexico courts have not adjudicated the merits of Dr. Frezza's case. That will occur after the court's final determination of choice of law. Read more about the case in the November issue of Texas Medicine.
Action, Sept. 15, 2015