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Published 11/1/2015
Melissa Young, JD

AAOS Board Supports Amicus Curiae Brief

Case will be heard by New Mexico Supreme Court

At its Oct. 2, 2015, meeting, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) voted to join an amicus curiae brief that has been filed in the appeal of Montaño v. Eldo Frezza, MD, and Lovelace Insurance Company, before the New Mexico Supreme Court. The brief was filed on Oct. 9, 2015. An amicus curiae or "friend of the court" is a person or group who is not a party to a lawsuit, but who has a strong interest in the matter, and who petitions the court for permission to submit a brief in the action with the intent of influencing the court's decision.

The case in question has ramifications for physicians who treat individuals from another state because it focuses on which state's laws should apply in the event of a medical malpractice suit. In effect, the court is being asked to decide whether Texas (site of the surgery) or New Mexico (the patient's home state) state tort laws have precedence.

The patient, a resident of New Mexico, traveled to Lubbock, Texas, to undergo bariatric surgery by Dr. Frezza at the Texas Tech University Health Sciences Center. Her insurance company, Lovelace Insurance Company (Lovelace), informed her that Dr. Frezza was the only approved bariatric surgeon listed on her health plan. During the ensuing 6 years, Dr. Frezza performed follow-up care for complications related to the 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 Lovelace New Mexico health plan.

Eventually, another doctor found gastrointestinal bleeding caused by an eroding permanent suture and performed corrective surgery. The patient subsequently sued Dr. Frezza and Lovelace Insurance Company in a New Mexico court. She argued that her case should be tried under New Mexico law because her injuries "manifested" themselves in New Mexico.

As an employee of a Texas state medical facility, Dr. Frezza would likely have been entitled to immunity from such liability under the Texas Tort Claims Act. The New Mexico legislation provides no such protection.

The trial court agreed with the patient, holding that Dr. Frezza was entitled to immunity but only to the extent provided by the New Mexico statute, specifically rejecting application of the Texas law. The case was then appealed.

In a March 19, 2015, opinion, the New Mexico Court of Appeals upheld the trial court's decision that a physician who provided medical care in Texas to a resident of New Mexico is subject to the New Mexico Tort Claims Act and not the equivalent Texas legislation. According to the appellate court, the "place of the wrong" is the place where the patient allegedly first discovered the alleged injury and not where the alleged injury occurred. Also, the appellate court determined that the "choice of law" favored New Mexico because applying Texas' more restrictive tort claims act violated New Mexico public policy, which provides the greatest remedy for the plaintiff.

The case is now being brought to the New Mexico Supreme Court for a final determination of whether Texas or New Mexico law applies. If the appellate court's ruling stands, it is unclear whether the future application of this legal precedent would be limited to state employees. Some physicians are concerned that, interpreted broadly, the Montaño decision may expand New Mexico's limited liability to Texas physicians in private practice and circumvent Texas' cap on noneconomic damages.

Other considerations
The amicus brief is being spearheaded by the Texas Alliance for Patient Access (TAPA), a statewide association of more than 250 healthcare interests providing medical care to Texas residents. TAPA's members include physicians, hospitals, long-term care facilities, charitable clinics, and medical liability carriers; all have an interest in ensuring timely access to quality healthcare.

According to TAPA, many New Mexico societies and healthcare providers are also filing amicus briefs. They contend that the decision may be seen as fair to one patient, but it may affect the ability of other New Mexico residents to receive care from Texas physicians. Another concern is that Texas physicians may seek to avoid liability under New Mexico's laws by treating fewer New Mexico residents. Additionally, Texas physicians are concerned that medical liability premiums may increase for those who treat New Mexico patients.

"Physicians and patients in Texas worked together to fix the state's broken legal climate for physicians and restore access to care for patients," said David D. Teuscher, MD, AAOS president. "Efforts to remove the proven and effective protections provided by the Texas Tort Claims Act will be defended at all costs." Dr. Teuscher was actively involved in the medical liability reform efforts in Texas in 2003.

"Participation in the amicus curiae brief is an appropriate way for AAOS to show support for fellows and members in all states with borders where patients cross to access health care," he added. Among the 31 organizations participating in the TAPA amicus brief are the American Medical Association, the Texas Orthopaedic Association, the Texas Medical Association and the American College of Emergency Physicians.

The New Mexico courts have not adjudicated the merits of the case, which will be heard after the New Mexico Supreme Court has made a final determination of whether Texas or New Mexico law applies to the case.

Melissa Young, JD, is the AAOS associate general counsel.