immunity from a lawsuit the plaintiff could have brought if the alleged mis- conduct happened in the course of the employee’s government employment. Ms. Montaño claims New Mexico
law applied, in part, because Dr. Frez- za “had a contract with Lovelace to provide medical services to New Mex- ico patients, and because New Mexi- co’s choice-of-law rule holds that the injury was completed in New Mexico, making New Mexico law applicable.” The district court denied Dr. Frez-
za’s motion and another attempt to dismiss the case, leading to an appeal. In a decision the Court of Appeals
issued in March, the court notes in previous cases, the New Mexico Su- preme Court had endorsed the place- of-the-wrong rule in deciding which state law to use. But the Court of Ap- peals says the place-of-the-wrong rule “may give way when policy consider- ations outweigh its application.” The district court determined that
Ms. Montaño’s injuries had “mani- fested themselves in New Mexico” and concluded that New Mexico law applies to the case as a result. Court of Appeals Judge Michael C. Bustamante wrote his court “perceive(d) no error” in that analysis. On the issue of whether to apply
Texas’ immunity law to Dr. Frezza’s case, the Court of Appeals ultimately decided that applying TTCA would violate New Mexico public policy and decided it was appropriate to use the New Mexico Tort Claims Act “to pro- vide the contours — or measure — of the immunity Dr. Frezza should enjoy in New Mexico courts.” Using New Mexico law assures out-of-state par- ties don’t get greater protections than the state provides to its own employ- ees and government agencies, Judge Bustamante wrote. If Ms. Montaño ultimately wins her
suit, application of New Mexico law would bring the potential for a con- siderably higher monetary judgment against Dr. Frezza. The medical tort reforms the Texas Legislature passed in 2003 cap noneconomic damages
November 2015 TEXAS MEDICINE 59
TORT REFORM GETS RESULTS
In 2003, the Texas Legislature passed comprehensive liability tort reform, featuring a $750,000 total cap on non- economic damages. Since then, the state has seen record numbers of new physicians, and the Texas Medical Board and other groups have tracked other positive markers for medical care and liability protection, including:
• In 2014, Texas had 54,942 physicians with in-state licenses — nearly 17,000 more than it had in 2003, and 8,251 more physicians than population growth could account for.
• Texas had 3,994 newly licensed physicians in 2014 — the most in any year on record and nearly 1,500 more than in 2003.
• This year, the Texas Medical Liability Trust paid a dividend to its renewing policyholders for the 11th year in a row, including 10-percent dividend payouts in 2014 and 2015.
• Rural Texas counties have added more specialists, with 55 rural counties adding at least one emergency physician and 23 rural counties adding at least one cardiologist since 2003.
For more information on the effect of the 2003 reforms, visit
www.texmed.org/tortreform.
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