Comments on: Medical roundup

By: The Frezza cases: Texas vs. New Mexico medical tug-of-war - Overlawyered

The Frezza cases: Texas vs. New Mexico medical tug-of-war - Overlawyered — Wed, 28 Oct 2015 10:15:03 +0000

[…] readers and commenters knew more than we did about that case referenced week before last in which the New Mexico courts are deciding whether a Texas doctor can be sued under New […]

By: gasman

gasman — Tue, 13 Oct 2015 12:50:46 +0000

Hopefully TX governor and legislature would see this as an affront to TX sovereignty, and create a new law of liability applying to NM residents conducting business in NM.

By: Walter Olson

Walter Olson — Tue, 13 Oct 2015 00:50:56 +0000

Thanks to readers for clarifying some of the issues.

It happens that I wrote about the general unfairness of application of plaintiff’s home state law in these general circumstances in my first book, The Litigation Explosion:

http://www.pointoflaw.com/books/tle_chap9.pdf

By: CarLitGuy

CarLitGuy — Tue, 13 Oct 2015 00:07:17 +0000

Unless the property he owned in New Mexico was part of his medical practice, of what relevance has its mere existence to jurisdiction over the conduct of a Texas Surgeon performing surgery in Texas? Ditto on the book sales, which appear to be offered everywhere Amazon.com reaches – Link to Amazon’s book sale. One could as well assert jurisdiction in CT, the location of his publisher… His website, “http://www.stayslimtheitalianway.com/slim/book.htm” can hardly be claimed to be targeting New Mexico residents, and I can’t find one (possibly as result of litigation?) for his personal practice. Neither does it seem appropriate to subject him to NM’s jurisdiction simply because someone in that state may have recommended him. Such an elastic test would subject the Doctors at any well regarded hospital with high risk specialties to the vaguaries of jurisdiction and potentially differing standards of care, liability, and damages of (at least) each of the fifty states they might potentially be referred patients from.

Better, thinks I, to judge a surgery conducted in Texas, at a Texas facility, by a Texas licensed surgeon, under the laws of Texas – without regard for where else the Dr might be licensed. If medical tourists want the benefit of his skills, they subject themselves to his law, they don’t carry their justice with them with which to surprise him (and, potentially, his insurer) if they are later unsatisfied with the results.

By: DBCooper

DBCooper — Mon, 12 Oct 2015 22:12:03 +0000

There is more to the New Mexico/Texas malpractice case that the article suggests. I just read the case, Gallegos v. Frezza, and for the most part it is very helpful for Texas doctors that treat folks coming over from New Mexico. The plaintiffs lost on their assertions regarding general jurisdiction. The surgeon in question performed the procedure in Texas, but was licensed in New Mexico, owned property in New Mexico, sold a book he published on surgery in New Mexico, and advertised in New Mexico (through his website). The New Mexico Supreme Court ruled that those contacts still did not create a sufficient jurisdictional nexus. BUT, the New Mexico Supreme Court remanded the case for the trial court to determine if the surgeon’s contract with the plaintiff’s New Mexico based health care plan provided as basis for specific jurisdiction. The record before the New Mexico Supreme Court was unclear on this point. It’s conceivable that the plaintiffs could still lose on remand.

By: Bill Poser

Bill Poser — Mon, 12 Oct 2015 19:25:29 +0000

It looks like this situation results from Gallegos v Frezza and related cases. The situation seems to be more complicated than the news article suggests in part because the New Mexican plaintiffs were referred to the Texas physician by New Mexican authorities.