THE ETHICS COLUMN
Malpractice: A Tale of Two States
By Jacob M. Appel, M.D., J.D.
Obscure legal controversies may have broad social implications—often unintended ones—and rarely has this been more the case than in the ongoing matter of Montaño vs. Frezza. Kimberley Montaño is a New Mexico resident who travelled to Lubbock, Texas, for bariatric surgery. For her surgeon, she chose Dr. Eldo Frezza at the Texas Tech University Health Sciences Center, a public hospital, because he was the only suitable provider covered by her insurer. Six years later, Ms. Montaño suffered a gastric bleed; alleging this bleed was the fault of an “eroding permanent suture” and thus Dr. Frezza’s fault, she sued for malpractice in her home state.
Dr. Frezza claimed immunity under the Texas Tort Claims Act (TTCA), which shields public employees from such lawsuits, while placing “caps” of $100,000 to $500,000 on government liability. A state district court in Albuquerque disagreed. The New Mexico court applied the principle that the applicable law should be that of the state where “the last necessary act to complete the injury occurred”; since the suture had eroded in New Mexico, that state’s laws—which do not grant immunity—applied. Puzzled? Wondering why this matters? Dr. Juan Escobar, former president of the El Paso County Medical Society, summed up the likely consequences in the El Paso Times: “Physicians and hospitals [in Texas] may be discouraged from performing high-risk procedures or provide high liability risk patient care to New Mexico residents.” If other state courts adopt this troubling principle, one might witness a rapid balkanization of health care delivery. Rather than merely asking what insurance you have, physicians might also start to ask your state of residence.
Both the TTCA and Texas’s broader approach to malpractice law are problematic. Since 2003, Texas has capped damages for pain and suffering at $250,000. While this may lower insurance rates and healthcare costs, it likely also allocates damages illogically. The countless profiteers who sue and settle frivolous lawsuits for low amounts still milk the system, while victims of truly horrific negligence (such as an amputation of the wrong leg) are stymied. Similarly, the immunity and caps of the TTCA may lower taxes and reduce frivolous litigation, but at the expense of those few victims truly deserving of a seven digit payout. None of these flaws in Texas law justify circumventing its policies to favor Ms. Montaño.
The practice of medicine, which was once a local endeavor, is rapidly becoming a far more complex enterprise that transcends local, state and even national boundaries. We live in a world of tele-psychiatry, robotic surgery and remote radiological diagnosis. Patients often seek care at the best hospital, not the closest. Clear, consistent rules of practice are essential for such a system to function well. Among these is a rule that doctors and patients are both governed by the law of the location where care was actually delivered—no matter what the tangible outcome of such an approach might be. Dr. Frezza has appealed his case to the New Mexico Supreme Court. For the sake of sick New Mexicans who live near Texas, let us hope he wins. #
