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NMMS File Amicus Brief - details of Supreme Court Case

October 09, 2015 at 02:48 MDT

Please see the following note from Dr. Martinez about a case before the Supreme Court and the amicus brief filed on behalf of Dr. Frezza by New Mexico Medical Society.

From:          James Martinez, MD President, New Mexico Medical Society

RE:             Texas Negligence Case to Proceed in New Mexico

Texas physician Eldo Frezza, MD, is being required to defend a medical professional liability lawsuit filed in New Mexico. Frezza v. Montaño has reached the New Mexico Supreme Court after lower courts ruled New Mexico law should apply to the case. The New Mexico Medical Society, Texas Alliance for Patient Access, Texas Medical Association, the American Medical Association, Texas Hospital Association, and many others, including several Texas county medical societies are joining to submit a friend-of-the-court brief to the Supreme Court on behalf of Dr. Frezza's effort to stop New Mexico law from applying to the case. Texas Medical Liability Trust is also submitting an amicus brief.

In 2004 Kimberly Montaño, a New Mexico resident, traveled to Lubbock to undergo bariatric surgery, performed by Dr. Frezza, who was an employee of Texas Tech University Health Sciences Center. During the ensuing six years Dr. Frezza performed follow-up care for complications related to Ms. Montaño's surgery. All of the care rendered by Dr. Frezza occurred in Texas. Dr. Frezza’s only direct connection to New Mexico was that he was listed on the panel of a New Mexico Managed Care Plan and was the only bariatric surgeon listed.

Subsequently, Ms. Montaño sued Dr. Frezza and the Health Plan in a New Mexico court. Ms. Montaño argued 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 Ms. Montaño, concluding the "place of the wrong" is the place where the injury "manifested," and not where the alleged injury occurred, at the surgical facility. Also, the court determined the "choice of law" favored New Mexico since applying Texas' more restrictive tort claims act violated New Mexico public policy that provides a greater remedy for plaintiffs.

The court elected to treat Dr. Frezza as a New Mexico state employee, extending the fact that he, as a faculty at Texas Tech, was a Texas state employee.  Subsequently, the court's ruling affects all Texas state and local government employees.

If affirmed by the New Mexico Supreme Court, the Montaño appellate court decision likely will serve as a precedent for expanded New Mexico-based liability for Texas physicians in private practice as well. The Texas caps on non-economic damages likely would not be applied in subsequent cases if an alleged injury "manifested" itself in New Mexico and the suit was filed in New Mexico. Texas limitations on liability would likely be found to be against New Mexico public policy.

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