New Mexico Case Update: Court Hears Oral Argument

August 24, 2016

The New Mexico Supreme Court heard oral argument in the Montano v. Frezza cross-border care case on Monday, August 15.

Texas Deputy Solicitor General Campbell Barker argued on behalf of the state and Dr. Frezza. New Mexico co-counsel Alice Lorenz helped Barker prepare for the argument.  

A total of 31 parties — including the New Mexico Medical Society, the New Mexico Hospital Association, the University of New Mexico Health Science Center, and the American Medical Association — joined on the TAPA brief.

TMLT and the University of Texas System filed complementary briefs. View the TMLT brief.

Several years ago, New Mexico resident Kimberly Montano traveled to Lubbock, Texas to undergo bariatric surgery.

Eldo Frezza, MD — an employee of the Texas Tech University Health Sciences Center —  performed the surgery. Over the next six years, Dr. Frezza performed follow-up care for complications related to Mrs. Montano’s surgery. All of the care given by Dr. Frezza 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 their plan.

Eventually, Mrs. Montano sought evaluation from another physician. She also retained legal counsel. Counsel for Mrs. Montano reports that tests revealed she had gastrointestinal bleeding caused by an “eroding permanent suture.” The second physician performed corrective surgery.

Subsequently, Mrs. Montano sued Dr. Frezza and Lovelace in a New Mexico court. Mrs. Montano argued that 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 Mrs. Montano. The court concluding that the “place of the wrong” is the place where Mrs. Montano allegedly first discovered the alleged injury and not where the alleged injury occurred.

Also, the court determined that the “choice of law” favored New Mexico since applying Texas’ more restrictive tort claims act violated New Mexico public policy that provides the greatest remedy for the plaintiff.

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 is not necessarily limited to state employees. Interpreted broadly, the Montano appellate court decision would be a precedent for expanded New Mexico-based liability for Texas physicians in private practice because the Texas cap on non-economic damages would not apply.

The New Mexico courts have not adjudicated the merits of the case. That will occur after the court’s final determination of choice of law.

The appellate court has determined that New Mexico public policy favors one remedy for one claimant over access to care for more than half a million residents of eastern New Mexico. In arriving at this decision, the appellate court never considered New Mexico’s long-standing public policy favoring access to care or the likely public health consequences of their decision.

New Mexico physicians and hospitals have long relied on their ability to refer or transfer sick and injured patients to Texas for specialized care. The willingness of Texas providers to receive those patients may be shaken if the Montano ruling stands. Access to health care is already challenging for New Mexico patients seeking care.

Read the TAPA brief
Read the TMLT brief

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