The court also concluded the “choice of law” favored New Mexico since applying Texas liability law violated New Mexico public policy that provides a greater remedy for plaintiffs. The points of contention—place of the injury and the jurisdiction—affect physicians of every specialty.

The New Mexico Court of Appeals ruled that New Mexico law is controlling, but ultimately, the state’s Supreme Court overturned that decision.⁵ The Texas College of Emergency Physicians and ACEP joined a “friend of the court” brief challenging the lower court’s ruling.⁶

The New Mexico Supreme Court instructed the lower court to dismiss the complaint without prejudice. Writing for the majority, Justice Edward Chavez stated, “The public interest in maintaining access to cross-border medical services is promoted by applying the law where such services were rendered.”⁵

The ruling, while not binding in all states, has persuasive authority, according to Alice Lorenz, New Mexico co-counsel for the Texas Alliance for Patient Access, the lead amicus who challenged the lower court’s ruling. In all, 31 parties signed on to the brief: 10 from New Mexico, 18 from Texas, and three national organizations, including ACEP and the American Medical Association.

A Win for Emergency Physicians

Had the plaintiff prevailed, Texas doctors would have been twice bitten. They would have lost Texas medical liability protections and yet remained ineligible to buy into and receive the benefits of the New Mexico Patient Compensation Fund. The Patient Compensation Fund provides an excess layer of liability coverage for doctors and hospitals that qualify under New Mexico’s Medical Malpractice Act. Dr. Frezza did not qualify to purchase such coverage because he practiced in Texas only.

A loss in the Montaño case would likely have caused Texas doctors and hospitals to reconsider their willingness to accept transfers or referrals of New Mexico patients. After all, why would or should doctors agree to assume greater liability risk simply by agreeing to see New Mexican patients in Texas? Additionally, Texas hospitals, such as Covenant, would have had trouble retaining emergency physicians and trauma specialists who are required to meet the obligations of its regional trauma center.

ACEP President-Elect Paul Kivela, MD, MBA, FACEP, describes the court victory as “a win for minimizing venue shopping by plaintiffs’ attorneys and, more importantly, maintaining patient access to care.”

Because of the victory in Montaño, the time-honored patient referral pipeline remains open between New Mexico and Texas.

The outcome is best summarized by one of Covenant Health’s patients, Lovington, New Mexico–resident Samuel Murphy. “I’d be dead today if not for the great care I received in Lubbock,” he said. “These were doctors and nurses I wanted to work on me. They gave me a fighting chance, and for that I am eternally grateful. Lots of people I know here in Lovington rely on the availability of medical care in Lubbock. I like our local hospital, but Lubbock is our lifeline.”⁷