“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.”
effort to stop New Mexico law from applying to the case. The Texas Medi- cal Association, concerned about the implications of the case, brought it to the attention of TAPA and other orga- nizations. TMA was to sign on to the friend-of-the-court brief, along with the New Mexico State Medical Soci- ety, the American Medical Association, and other organizations, including some county medical societies. Mike Hull, an attorney for TAPA,
says allowing the suit against Dr. Frez- za to go forward under New Mexico law would take Texas physicians back to the pre-tort reform “bad old days.” “At least from my perspective, the
question is not, ‘Can New Mexico do this?’ They have the power. It’s wheth- er they should,” Mr. Hull said.
THE CHOICE-OF-LAW BATTLE Ms. Montaño’s case is one of five suits plaintiffs filed against Dr. Frezza for his bariatric surgeries, but the Su- preme Court’s decision in the Mon- taño case will likely decide the appli- cation of law for the others. Ms. Hardy says a district court heard two of the other cases together and ruled in Dr. Frezza’s favor on jurisdiction, but the New Mexico Court of Appeals ruled that additional information was nec- essary to determine whether New Mexico courts have jurisdiction over Dr. Frezza. The remaining two cases are on hold, awaiting the Supreme Court’s decision. Dr. Frezza performed bariatric
surgery on Ms. Montaño in February 2004, and Ms. Montaño went back to see him in Lubbock for follow-up care and treatment, according to court documents. Ms. Montaño’s insurer, Lovelace Insurance Co., told her Dr. Frezza was the only bariatric surgeon for whom Lovelace would provide coverage, her filings claim. Her initial complaint says she suf-
fered severe abdominal pain after her procedure, but Dr. Frezza assured her it was normal. She claims in 2010 an- other Lubbock physician conducted tests on Ms. Montaño, found gastro-
58 TEXAS MEDICINE November 2015
intestinal bleeding from a tangled net- work of sutures, and performed cor- rective surgery. In 2011, Ms. Montaño sued Dr.
Frezza for medical negligence, vio- lation of the New Mexico Unfair Practices Act, and lack of informed consent. She also sued Lovelace for breach of contract, negligent referral, and violation of the Unfair Practices Act. Her filings claim Dr. Frezza was “incompetent to provide surgery and was a menace to his patients” who de- liberately misled Ms. Montaño about the extent of the damage he did to her in surgery. Ms. Hardy told Texas Medicine Dr.
Frezza was not available for an inter- view due to the pending litigation, but she says the doctor’s handling of each patient met the standard of care. “I think all of the cases involved
[have] similar allegations, and it’s our position that those are anticipated and potential complications of these types of surgeries,” she said. But the cases haven’t even gotten
that far because before the merits come into play, the courts must first settle on which state’s law applies. “Jurisdiction” and “choice of law”
are different, Ms. Hardy explains. While jurisdiction involves a deter- mination of whether Dr. Frezza has enough of a presence in New Mexico for a state court there to issue an order to him, choice of law involves the is- sue of which state’s law should apply. As it hears a case, one state can recog- nize and apply another state’s law. Dr. Frezza filed a motion to dis-
miss the initial claim on choice-of-law grounds, claiming Texas law and the Texas Tort Claims Act (TTCA) should apply to the claims against him. The motion cited New Mexico case law that held, “the substantive rights of the parties are governed by the law of the place where the wrong occurred.” Because the alleged negligence oc- curred in Lubbock, Dr. Frezza’s filing argued, Texas law should apply. The filing also notes that under TTCA, a government employee has
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