New Mexico Supreme Court Extends Comity In Applying Texas Law In Medical Malpractice Case

162017_132140396847214_292624_nIn its opinion filed on March 13, 2017, the Supreme Court of the State of New Mexico (“New Mexico Supreme Court”) extended comity to Texas and applied Texas law to the New Mexico medical malpractice plaintiff’s claims, thereby dismissing the plaintiff’s New Mexico medical malpractice lawsuit without prejudice because she had failed to amend her pleadings and name the proper party within thirty days of the defendant physician’s motion to dismiss, as required by Texas law.


Comity is a doctrine under which a sovereign state chooses to recognize and apply the law of another sovereign state. The New Mexico Supreme Court extends comity unless doing so would undermine New Mexico’s own public policy (the law of the sister state must not only contravene New Mexico public policy, but be sufficiently offensive to that policy to outweigh the principles of comity).

Four-Factor Analysis

The New Mexico Supreme Court stated that there are four factors in determining whether it is appropriate to extend comity and fully enforce another state’s sovereign immunity provisions: (1) whether the forum state would enjoy similar immunity under similar circumstances, (2) whether the state sued has or is likely to extend immunity to other states, (3) whether the forum state has a strong interest in litigating the case, and (4) whether extending immunity would prevent forum shopping.

The issue that the New Mexico Supreme Court had to decide in the present case was whether a New Mexico resident who has been injured by the negligence of a state-employed Texas surgeon can name that surgeon as a defendant in a New Mexico lawsuit when Texas sovereign immunity laws would require that the lawsuit be dismissed.

The Alleged Facts

The plaintiff, a New Mexico resident, sought bariatric surgery for her obesity in early 2004. The only bariatric surgeon covered by her health insurance was employed as a bariatric surgeon at Texas Tech University Health Sciences Center (Texas Tech Hospital) in Lubbock, Texas, which is a governmental unit of the State of Texas. The parties acknowledged that the bariatric surgeon was acting within the scope of his employment at Texas Tech Hospital when he provided care to the plaintiff.

On February 3, 2004, the Texas bariatric surgeon performed laparoscopic gastric bypass surgery on the plaintiff at Texas Tech Hospital. The plaintiff began to suffer from abdominal pain after the procedure. The bariatric surgeon told the plaintiff some discomfort was normal and assured her that everything was OK. Nonetheless, the plaintiff was admitted to various medical centers on multiple occasions for severe abdominal pain.

Six years after the surgery was performed, the plaintiff was admitted to another hospital in Lubbock, Texas, where a physician performed an esophagogastroduodenoscopy (EGD) to determine the cause of her pain. It was determined that the 2004 bariatric surgery had left a tangled network of sutures in the plaintiff’s gastric pouch and down the jejunal limb, which was diagnosed as the cause of her constant severe abdominal pain and required revision surgery of the earlier gastric bypass procedure.

In October 2011, the plaintiff filed her New Mexico medical malpractice complaint naming the original bariatric surgeon as a defendant, alleging that he committed medical negligence and misled her regarding the risks of the procedure and the cause of her pain.

The defendant bariatric surgeon filed a motion to dismiss the plaintiff’s complaint under Rule 1- 17 012(B)(6) NMRA, for failure to state a claim upon which relief could be granted, arguing, in part, that the district court should (1) recognize and apply the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 to -.109 (1985, as amended through 2015) (TTCA) under principles of comity, and (2) dismiss the suit because Texas law prohibits suits against individual governmental employees and requires courts to dismiss such suits unless the plaintiff substitutes the governmental employer of the employee within thirty days of the motion. TTCA § 101.106(f).

The district court declined to extend comity and denied the defendant bariatric surgeon’s motion to dismiss, finding that it would violate New Mexico public policy to apply Texas law to the plaintiff’s claims. The intermediate New Mexico appellate court affirmed on this issue.

The New Mexico Supreme Court Decision

The New Mexico Supreme Court stated that this case implicates Texas’ sovereign immunity, and therefore it might be resolved through principles of comity that should be extended unless doing so would undermine New Mexico’s own public policy.

The New Mexico Supreme Court stated that under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015) (NMTCA), if the defendant bariatric surgeon were employed by a New Mexico governmental employer, the plaintiff’s New Mexico medical malpractice lawsuit against the bariatric surgeon could proceed because individual governmental employees can be named as defendants. Because immunity under New Mexico law would not be similar under similar circumstances, the New Mexico Supreme Court needed to examine the other three factors in determining whether to extend comity.

The New Mexico Supreme Court stated that in the absence of any indication that Texas has refused to grant immunity to New Mexico or any other state under circumstances that are similar to this case, it assumes that Texas would extend comity to New Mexico to encourage future cooperation and reciprocity between Texas and New Mexico, noting that it is not “overly speculative to conclude that extending comity to Texas in this case will positively serve New Mexico’s public policy interests by encouraging the continuing cooperation of Texas and New Mexico in maintaining cross-border care networks.”

The New Mexico Supreme Court stated that this case turns upon a Texas state employee’s acts or omissions that were alleged to have occurred entirely within Texas. Thus, Texas has a comparatively strong interest in determining the duties and immunities of that employee and applying a uniform standard of liability to identical conduct by Texas employees performing their duties in Texas.

The New Mexico Supreme Court concluded with regard to the third factor, “Our analysis of this factor does not reveal a strong public policy rationale for denying comity to Texas. The substantial public policy interests in applying Texas law to this case are not outweighed by New Mexico’s interest in providing a forum for New Mexicans who seek redress for medical negligence.”

With regard to the fourth factor, the New Mexico Supreme Court stated, “we conclude that failing to extend any immunity to Texas in this case could encourage forum shopping by allowing plaintiffs to name Texas state employees in lawsuits in New Mexico when plaintiffs could not do so in Texas. Thus, extending comity to Texas by dismissing [the defendant bariatric surgeon] from this suit under the TTCA would prevent forum shopping to some degree by promoting the uniform application of Texas’ waiver of sovereign immunity.”

The New Mexico Supreme Court concluded, “We have not identified a strong public policy weighing against the presumption of comity in this case. Accordingly, we extend comity to Texas and apply TTCA 11 Section 101.106(f).”

Source Montano v. Frezza, No. S-1-SC-35214.

What was at stake for the New Mexico medical malpractice plaintiff in this case? Read our prior posting regarding 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 or call us toll-free in the United States at 800-295-3959 to find New Mexico medical malpractice attorneys, or medical malpractice attorneys in your state, who may assist you.

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

This entry was posted on Saturday, April 15th, 2017 at 5:27 am. Both comments and pings are currently closed.

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