Law BY JOEY BERLIN
Border battle
TMA AND OTHERS TO ASK FOR REVERSAL OF RULING THAT ALLOWS TEXAS NEGLIGENCE CASE TO PROCEED IN NEW MEXICO
A
doctor sued for negligence for a procedure he performed in Texas will have to defend himself under the law of … New Mexico? Right now, that’s the situation in which Eldo Frezza, MD, finds him-
self. The bariatric surgeon faces several similar suits filed not in Texas, where he performed surgery on the patients, but in New Mexico, where the plaintiffs live. One of those suits, courtesy of plaintiff Kimberly Montaño, has reached the New Mexico Supreme Court after lower courts ruled New Mexico law should apply to the case. The reason, in short, is this: The courts, thus far, have held Ms. Montaño’s
injuries “manifested themselves” in New Mexico, making that state the “place of the wrong” where the law should apply — even though Dr. Frezza operated on and treated Ms. Montaño while working as a state employee for Texas Tech University Health Sciences Center (TTUHSC) in Lubbock. The Frezza v. Montaño case is sounding alarms all over Texas’ medical com-
munity, conjuring fears that if the Supreme Court upholds the application of New Mexico law, it could have a significant impact on Texas doctors who oper- ate near the state’s vast borders and treat out-of-state patients. “I do think that’s a dangerous precedent to set, especially in the rural parts
of New Mexico where we don’t have a lot of health care providers, and people need to go to Texas to be treated,” said Dana Hardy, a Santa Fe, N.M., attorney representing Dr. Frezza. As a Texas physician subject to New Mexico law, Dr. Frezza and other Texas
state employees wouldn’t have immunity from being sued for work in the course of their state employment, as they do under Texas law. He also wouldn’t enjoy protections of tort reform the Texas Legislature passed in 2003. (See “Tort Re- form Gets Results,” page 59.) The case caught attention from members of the El Paso County Medical So- ciety (EPCMS), whose physicians often care for out-of-state patients. Juan Escobar, MD, immediate past president of EPCMS, wrote a guest col-
umn in the El Paso Times in August urging the Supreme Court to rule in favor of Dr. Frezza. Dr. Escobar wrote if the high court upholds the appeals court’s deci- sion, it would open the door for New Mexico-licensed attorneys to file suits on behalf of New Mexico patients against a host of El Paso physicians and practices. “The consequences will be higher liability insurance premiums, increased
costs of practicing defensive medicine, and reluctance of new physicians to re- locate or stay in the area because of its proximity to New Mexico,” he wrote. “In turn, this will increase the cost of providing care and reduce access for our patients in our already underserved region.” At press time, the Texas Alliance for Patient Access (TAPA) planned to sub- mit a friend-of-the-court brief to the Supreme Court on behalf of Dr. Frezza’s
November 2015 TEXAS MEDICINE 57
“The question is not, ‘Can
New Mexico do this?’ They have the power. It’s whether they should.”
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68