Battle Continues In New Mexico Medical Malpractice Case Filed Against Texas Surgeon

162017_132140396847214_292624_nThe New Mexico Supreme Court is scheduled to hear an appeal regarding a New Mexico medical malpractice case filed against a Texas surgeon involving the plaintiff’s claim that her gastric bypass surgery performed in Texas in 2004 by a Texas surgeon was performed negligently, thereby causing gastrointestinal bleeding that was not discovered until 2011, when a surgeon in the plaintiff’s home state of New Mexico discovered the cause of her bleeding during surgery.

At issue is whether a Texas surgeon should be subject to defending a medical malpractice case filed in New Mexico where his surgery and follow up care took place solely in Texas. The issue caught the eye of the New Mexico legislature and governor, ending when the New Mexico governor signed into law on March 3, 2016 a provision that permits physicians and patients to agree ahead of time where a medical malpractice case may be filed and which state’s medical malpractice laws will apply to any medical malpractice claim. New Mexico officials were concerned that without the new law, Texas medical providers would stop treating New Mexico residents.

The New Mexico Court of Appeals had held that the place of the wrong is not where the injury occurred but where the injury from medical malpractice is first discovered, thereby determining that the plaintiff’s New Mexico medical malpractice case was properly filed in New Mexico.

A lot is at stake for the plaintiff in how the Mexico Supreme Court rules: had the plaintiff filed her medical malpractice case in Texas, her claim would have been subject to the two year statute of limitations for medical malpractice cases filed in Texas, as opposed to New Mexico’s three year statute of limitations. Because the Texas surgeon who allegedly injured the plaintiff was an employee of a state institution, Texas Tech, acting within the scope of his employment in treating the plaintiff, the plaintiff could not sue the defendant surgeon individually in Texas but rather she would need to sue Texas Tech, pursuant to the Texas Tort Claims Act. In New Mexico, she is free to sue and name as a defendant the state employee.

Furthermore, Texas imposes a $250,000 cap on non-economic damages in medical malpractice claims, and further caps all damages to $100,000 when the defendant is a state employee acting within the scope of employment, whereas the plaintiff’s medical malpractice damages would not be limited in New Mexico if the defendant physician is neither an employee of New Mexico nor a qualified health care provider as defined by the New Mexico Medical Malpractice Act (New Mexico limits damages in medical malpractice cases against New Mexico state employees to $700,000 per occurrence).

Much is at stake for both New Mexico patients and Texas health care providers depending upon how the New Mexico Supreme Court rules in this case.


If you or a loved one suffered serious harm in New Mexico that may be due to medical malpractice, you should promptly find a New Mexico medical malpractice lawyer who may investigate your medical negligence claim for you and represent you in a New Mexico medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free at 800-295-3959, to find New Mexico medical malpractice attorneys who may assist you.

Turn to us when you don’t know where to turn.

This entry was posted on Thursday, March 24th, 2016 at 5:12 am. Both comments and pings are currently closed.


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