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.

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The high court cited organized medicine’s concern in its ruling.

“Access to cross-border health care for individuals living in rural parts of New Mexico is an additional consideration that tempers New Mexico’s interest in applying its law to this case,” the majority wrote. “Numerous amici have informed this court about the relative 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 in the care for many residents of the southern and eastern portions of our state.”

The court considered whether allowing the case to go forward in New Mexico would make medical care less available to residents. While justices said they believed the arguments were too speculative to draw a definitive conclusion on that point, they believed allowing the grievance to fall under Texas law would “positively serve New Mexico’s public policy interests by encouraging the continuing cooperation of Texas and New Mexico in maintaining cross-border care networks.”

Physicians welcomed the opinion because it prevents patients from “forum shopping” in a neighboring state with weak liability protections. Here, protection for a Texas physician also helped ensure that patients in rural eastern New Mexico will continue to have access to physicians in neighboring West Texas. Otherwise, Texas physicians might decline to treat out-of-state patients if the physician knew they would not be protected under Texas law.

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