New Mexico Court Rules in Favor of Physicians

March 15, 2017

The Supreme Court of New Mexico has ruled in favor of physicians in the Montano v Frezza case, in a 4 to 1 decision. 

At issue in the case was whether a New Mexico resident who was treated in Texas by a Texas physician could file suit against that physician in New Mexico and the physician would be held to New Mexico law. The New Mexico Supreme Court ruling allows the Texas Tort Claims Act to govern the case.

In arriving at their opinion, the justices only considered the issue of comity – that is, respecting the sovereignty of sister states.  

Amicus briefs to the Court made a difference
In the court’s ruling, the Justices referred to “numerous amici” that described the “shortage of doctors, particularly specialists, in certain rural areas of New Mexico and the important role that state-operated health care facilities in Texas play in filling those gaps for many residents of the southern and eastern portions of our state.” 

They further commented that while there is no proof that this case would jeopardize the availability of care, they “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.” 

A total of 31 parties — including the New Mexico Medical Society, the New Mexico Hospital Association, the University of New Mexico Health Science Center, the Texas Medical Association and the American Medical Association — joined on a  brief submitted by the Texas Alliance for Patient Access.

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

Patient consent forms still needed
Because this ruling only dealt with tort claims act cases involving governmental employees, physicians who treat patients from New Mexico should continue to have those patients sign choice of law and forum agreements before treatment.

Summary of the case
In 2004, 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 and others 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 was listed on the Lovelace New Mexico health plan, allegedly creating a direct connection with the state that would allow him to be sued there. 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.

In 2011, 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 could have been interpreted broadly to affect not only state employees, but also Texas physicians in private practice, eliminating their access to protections from our tort reform. 

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 could have been shaken if the Montano ruling had been allowed to stand. Access to health care is already challenging for some New Mexico residents.


Commitment to physician advocacy
A physician in Lubbock first brought this case to the attention of the medical community. TAPA, TMA, TMLT, and others immediately saw the need to get involved and advocate on behalf of physicians. The ruling is an important victory for physicians from Amarillo to El Paso and along the Texas-New Mexico border. It is also important for hospitals and medical centers throughout Texas, as these facilities also treat patients from New Mexico. 

Together, we continue our commitment to stand up for health care professionals and the patients they serve.

For more information, please contact Jill McLain with TMLT at 512-425-5827 or jill-mclain@tmlt or John Opelt with TAPA at 512-703-2156 or

Continued reading
Supreme Court of New Mexico opinion in Montano v Frezza
Texas doctors can’t be sued in New Mexico, court rules

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