- Associated Press - Monday, January 11, 2016

ALBUEQUERQUE, N.M. (AP) - The New Mexico Supreme Court has agreed to hear a lawsuit examining if either Texas of New Mexico laws apply to a woman’s lawsuit alleging medical malpractice.

Kimberly Montano is looking to pursue a medical malpractice claim against a Texas Tech University surgeon she says botched her gastric bypass surgery in 2004, The Albuquerque Journal reports (https://bit.ly/1RGacc9). She said she sought treatment in Lubbock, Texas because that was the only way her insurer would cover it.

Texas law bars lawsuits against individual state employees such Dr. Eldo Frezza, then chief of bariatric surgery at Texas Tech University Health Sciences Center, who performed the surgery. In New Mexico she would be able to pursue her case for damages.

Doctors and hospitals in both states have said the decision could be disastrous for patient care in eastern New Mexico, where doctors are scarce. They say it could lead Texas providers to be reluctant to care for New Mexico patients for fear of being sued.

But Montano’s attorneys say it is unfair if Texas law applies, since Texas’ tort laws are far less plaintiff friendly.



“While New Mexico has developed a public policy favoring recovery for injured parties, Texas has done the opposite, developing a system of medical liability laws hostile to its citizens injured as a result of medical negligence,” the trial lawyers argue. “The merits of Texas’ choices are not at issue here . but New Mexico has made different choices.”

A state District Court and the New Mexico Court of Appeals both concluded that violates New Mexico’s public policy.

Frezza’s attorneys argue that the lawsuit must be filed where the alleged harm occurred: Texas. The two New Mexico courts said the injury “manifested itself” in New Mexico, making the state the proper venue.

Montano filed a lawsuit in 2011 claiming she suffered abdominal pain shortly after her 2004 surgery. She says Frezza told her discomfort was normal, but her pain became so severe she was admitted to other medical centers multiple times until in 2010 she had a surgery to repair damaged caused by her initial surgery.

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Information from: Albuquerque Journal, https://www.abqjournal.com

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