“NM vs. Texas — Whose law wins?”

Scott Sandlin has this article in today’s Albuquerque Journal about the Montaño v. Frezza case pending before the New Mexico Supreme Court. I’ve previously written about this case here.

The plaintiff is a New Mexico resident who underwent gastric bypass surgery at Texas Tech University hospital in 2004. She later filed a lawsuit in New Mexico state court alleging that the surgeon, Dr. Eldo Frezza, committed malpractice. Dr. Frezza argued that the case should be dismissed because, as an employee of the State of Texas, he is entitled to sovereign immunity. Both the trial court and the Court of Appeals refused his request for dismissal, but allowed him the same “immunity” from liability that a qualified healthcare provider would enjoy under the New Mexico Medical Malpractice Act.

As Ms. Sandlin’s article notes, several amici have filed briefs in this case. Healthcare providers argue that affirming the decision will exacerbate the shortage of medical care available to New Mexicans in the eastern and southern parts of the state, because Texas medical providers may decline to provide non-emergency medical care.

Plaintiffs’ lawyers argue that these concerns are exaggerated. They also argue that many New Mexicans are required by their insurers to obtain care in Texas, and should not be deprived of a remedy should they receive substandard care.

This case could also be affected by another case pending in the Supreme Court of the United States this term. The reason that Texas government employees can be sued in New Mexico in the first place is due to the Supreme Court’s 1979 decision in Nevada v. Hall, which permits states to be sued in the courts of other states without their consent.

But last month the Supreme Court heard oral argument in Franchise Tax Board of California v. Hyatt, a case which asks whether Nevada v. Hall should be overruled. If that decision is overruled, it could upend the ability of New Mexicans to sue physicians who are employed by the State of Texas in our state courts.

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