Texas Wins Tort Border Battle

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, 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 than those in place in other states.

The case, Montaño 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), The University of Texas System, and the 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 information from TAPA, TMA, TMLT, the American Medical Association, several county medical societies, and others. Those organizations provided demographic data 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 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 courts. 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. 

Action, March 15, 2017

Last Updated On

April 06, 2017

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