May 4, 2017: Judicial Advocacy Update

Iowa's highest court says error-reporting document is confidential

A trial court initially told an Iowa hospital to turn over its patient safety network (PSN) incident report and related documents to a man as part of discovery in his medical malpractice lawsuit, but the Supreme Court of Iowa has said the hospital does not have to share the protected information.

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In a ruling in Willard v. State of Iowa, the high court said the Iowa Morbidity and Mortality Study Law (MMSL), which was passed to keep peer-review information and materials confidential, protects the information from being given to a patient who sued after being treated at the University of Iowa Hospitals and Clinics (UIHC).

"A PSN clearly falls within the legislative intent of 'any study for the purpose of reducing morbidity or mortality,' " the justices said. "The PSN system allows the UIHC to keep track of patient incidents and to route them to the appropriate department for resolution. The PSN system can also result in revised policies for the hospital as a whole or for use in studies, reports and presentations."

State's top court deals blow to medical liability forum shopping

A woman who lived in eastern New Mexico—an area that has few specialists to care for patients and no Level 1 or Level 2 trauma centers—chose to cross the state line for elective bariatric surgery in Lubbock, Texas. For about six years Kimberly Montaño traveled to the Texas office of Eldo Frezza, MD, for follow-up care and treatment for complications from the surgery. Ultimately, another physician diagnosed Montaño with gastrointestinal bleeding from an "eroding permanent suture" and corrected the problem.

The New Mexico woman—even though she received care in Texas from a state-employed Texas physician—filed a malpractice lawsuit against Dr. Frezza in a New Mexico court. The laws of New Mexico provide fewer protections for physicians and patients than do the laws of Texas. Dr. Frezza argued that the lawsuit should be dismissed because, as a Texas public employee, the Texas Tort Claims Act provided immunity from the lawsuit.

The Litigation Center of the AMA and State Medical Societies, along with the Texas Medical Association, the New Mexico Medical Society and others filed a friend of the court brief in the case, Montaño v. Frezza, that expressed access-to-care concerns. The brief notes, among other things, that a half dozen counties in eastern New Mexico do not have access to a cardiologist, neurologist, plastic surgeon, orthopedic surgeon, radiologist or otolaryngologist and patients must travel to West Texas for treatment.

The New Mexico Supreme Court in March agreed with Dr. Frezza and the Litigation Center brief. The court ruled that the lawsuit could not go forward in the New Mexico court system, with the majority of justices concluding that they did not see strong public policy in New Mexico that would prevent them from respecting neighboring Texas laws. The decision reversed two lower-court rulings that would have allowed the lawsuit to go forward in New Mexico.