A medical malpractice lawsuit filed by a New Mexico patient against a Texas doctor could have disrupted care for patients throughout the state, said state Rep. Terry McMillan, R-Las Cruces.
Legislation sponsored by McMillan that takes effect Friday will temporarily resolve the issue while the New Mexico Supreme Court considers the case, he said.
In 2004, New Mexico resident Kimberly Montano traveled to Lubbock, Texas, to have bariatric surgery at Texas Tech University performed by Dr. Eldo Frezza. She later sued Frezza, who would have had immunity under Texas law because he is employed by the state. But Montano sued in New Mexico courts, arguing that even though the surgery and follow-up treatments were performed in Texas, her subsequent injuries manifested in New Mexico.
When the New Mexico Appeals Court agreed with her, doctors throughout Texas threatened to stop seeing New Mexico patients, McMillan said.
“Nobody’s malpractice insurance is going to cover another state,” said McMillan, who is the only medical doctor in the Legislature. “They were not going to see New Mexico patients anymore unless we did something.”
Randy Marshall, executive director of the New Mexico Medical Society, said some Texas providers had already made the decision to stop seeing New Mexico patients.
“There were large practices where 60 percent of their patients are from New Mexico, and they were going to stop seeing those patients,” he said. “Some practices were already turning away patients.”
The original version of the bill would have required patients to file any malpractice lawsuit in the state where the care was provided. That passed 34-27 in the Republican-controlled House, but stalled in the Senate Judiciary Committee. The bill had been tabled, but committee Vice Chairman Sen. Joseph Cervantes, D-Las Cruces, said he felt it was important to find a compromise.
“We have a somewhat unique situation in southern New Mexico where so many people in our community rely on Texas and El Paso doctors for care. Much of that care is only available in El Paso for folks locally,” he said. “It was tabled and effectively killed, and a number of us were working in the background to try to find something that would work and maintain the current availability of medical treatment in Texas for New Mexico while we await action by the Supreme Court.”
The amended bill now allows doctors in other states to request patients to sign a form stating that they would file any lawsuits in the state where the treatment was provided, and the court would have to respect that, McMillan said. The Senate Judiciary was unwilling to make those changes permanent, Cervantes said, so the bill will sunset in three years.
“That was part of the compromise,” McMillan said. “If the Supreme Court reverses the Appeals Court and maintains the principle, then we’ll have no more work to do.”
Malpractice laws are much more restrictive in Texas than in New Mexico, McMillan said.
“They had extensive malpractice tort reform 10 or 15 years ago. The amount of awards are less, and you’re extremely limited in your ability to sue physicians who are employees of the state of Texas,” he said. “The tort environment in New Mexico is much more liberal, so providers around us don’t want to be exposed.”
In a letter to the editor after the bill was passed, John J. Aguirre Sr. of Las Cruces argued that the legislation would restrict rights for New Mexico patients, even in cases where their insurance required that they go out of state for care, as happened with Montano.
“Anytime we give up a legal right it should give us pause,” he said. “It doesn’t happen often, but when malpractice does occur, New Mexicans will be very sorry to have accepted the jurisdiction of Texas courts, where there are extremely low caps on non-medical awards and a much stricter time frame in which problems can be discovered and remedy sought.”
Cervantes said the situation leading to the appeals court ruling was unique, and did not create the legal jeopardy for Texas doctors that they believed it did, but he said the concern that they would stop seeing New Mexico patients was legitimate.
“The doctors were convinced they were at risk. Whether that was accurate or not doesn’t matter,” he said. “The Senate Judiciary Committee has fought to protect the rights of people to have access to the court. The legislation, as introduced, would have limited or restricted those rights. This meets the balance. It gives some protections to doctors and maintains other for protections for patients. I believe it was a good compromise.”
Marshall said if Texas doctors stopped seeing New Mexico patients, it would have an enormous impact on access to care. A recent report by the New Mexico Medical Society documents the reliance on Texas providers. That report found that nearly one quarter of Doña Ana County residents needing hospitalization received those services in Texas.
“Living in Las Cruces, oftentimes their primary care doctor will be in Las Cruces, but they will go to El Paso for other services,” he said.
The Supreme Court is scheduled to hear the Frezza case in August, McMillan said.
New Mexico Medical Society report on percentage of hospitalizations of New Mexicans in Texas:
Chaves County 8.7 percent
Curry County 26.8 percent
DeBaca County 27.0 percent
Dona Ana County 24.7 percent
Eddy County 18.4 percent
Harding County 26.1 percent
Lea County 35.6 percent
Lincoln County 12.0 percent
Luna County 8.7 percent
Otero County 13.3 percent
Quay County 36.3 percent
Roosevelt County 33.7 percent
Union County 37.9 percent