A surgeon from Texas Tech University has been given a pass on a medical malpractice suit filed against him. The gastric bypass surgery performed on a New Mexico woman that ended in misery for the patient and a malpractice suit against the surgeon has been overturned – due to something other than the facts of the case itself. It has been reversed by the Court of Appeals because there is a fear that the underserved area of New Mexico might become even more so if Texas physicians are fearful of being sued.
The appeals court ruled that Montano’s suit will be dismissed without prejudice. The case is causing a stir in both Texas and New Mexico’s medical circles. Doctors from both states came in droves to express their concerns that if the case stands, it could lower the access of care to many New Mexico citizens who are already in need of help that isn’t readily available. Hospitals and doctors’ groups around the nation filed a brief to petition the court to overturn the judgment.
Kimberly Montano, the woman who initiated the lawsuit, insists that if she isn’t allowed to file a malpractice suit, she will not have any recourse to recover for her damages and pain and suffering related to her injuries. The main issue surrounding this case is that Montano had her gastric bypass surgery at a facility in Texas, but was a resident of New Mexico. She wanted to sue in New Mexico, however, because the malpractice laws in Texas are very different. In Texas, you aren’t able to sue any state employee, and the surgeon who performed the gastric bypass was a state employee.
Montano maintains that she had to have the surgery in Texas instead of New Mexico because her insurance would not cover it otherwise. She filed her malpractice suit in Albuquerque because that is where she lives. She alleges that she returned after the surgery to complain about severe abdominal pain. Dr. Freeza, the surgeon, told her that the discomfort was completely normal. However, the pain did not subside and she had to be seen at several different facilities as it began to increase.
Finally, Montano had to have another surgery to figure out what was causing the pain. At that time a different surgeon informed her that the initial surgery had been botched and her sutures were a tangled mess that had become infected. She not only suffered extensive pain, but her long-term prognosis and quality of life have been severely altered. She has a significant amount of medical bills, has lost considerable time from work, and she wanted to recover for her pain and suffering.
Freeza’s attorney argued that since Freeza was operating out of Texas and was a state employee, the Texas laws should apply. That would disallow Montano the ability to sue. A New Mexico district judge, however, ruled in favor of Montano, stating that the case should continue forward. It went to the Supreme Court, where it was determined that Montano should not be allowed to sue in New Mexico since the procedure was in Texas, and the Texas courts should have jurisdiction.
The problem is that it has left Montano and many like her no options to sue when they are the victim of malpractice, especially when they are being forced by their insurer to receive care in the adjacent state. Without any options, Montano did not want to have her surgery across state lines but was forced to. When it didn’t go as planned, she was left with no recourse for her pain and suffering or the health consequences of medical malpractice.
According to the ruling, it is in New Mexico’s best interest to not be allowed to file the malpractice suit. If people can file in New Mexican courts for malpractice perpetrated in Texas, then it may limit access options for a very underserved area and do everyone a disservice, leaving many without necessary medical care. The problem is that either way the court ruled, someone would have been underserved. If physicians are not sued for the mistakes that they make and are protected, then who is protecting the victim? It’s a sticky situation all the way around, but for now the ruling stands.
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