Articles Posted in New Mexico Supreme Court

by
Kimberly Montano, a New Mexico resident, sought bariatric surgery for her obesity in early 2004. At that time Eldo Frezza, M.D. was the only doctor from whom Montano could receive that surgery and still be covered by her insurer. Montano believed that she needed the procedure and that she could not afford it without medical insurance coverage. Dr. Frezza was employed as a bariatric surgeon and professor and served as chief of bariatric surgery at Texas Tech University Health Sciences Center in Lubbock, Texas. The issue this case ultimately presented for the New mexico Supreme Court’s review was whether a New Mexico resident who had been injured by the negligence of a state- employed Texas surgeon name that surgeon as a defendant in a New Mexico lawsuit when Texas sovereign immunity laws would require that the lawsuit be dismissed. The Court initially presumed that comity should be extended because cooperation and respect between states was important. “However, this presumption is overcome and a New Mexico court need not fully extend comity if the sister state’s law offends New Mexico public policy” In this case, the New Mexico Court applied the Texas provision requiring that the case against the surgeon be dismissed because do View "Montano v. Frezza" on Justia Law

by
On December 12, 2002, Defendant Dr. Steven Wenrich delivered Plaintiff Cynthia Provencio's fourth child via caesarean section. Prior to surgery, Mrs. Provencio consented to Defendant contemporaneously performing a tubal ligation procedure on her sole fallopian tube because she did not wish to have additional children. After completing the surgeries, Defendant sent a portion of what he believed was ligated fallopian tube to a laboratory for analysis. The resulting pathology report revealed that the tissue Defendant had ligated was ligament, not fallopian tube, and Plaintiff still could conceive children. Since the Supreme Court issued "Lovelace Medical Center v. Mendez," (111 N.M. 336 (1991)) more than 20 years ago, the Court has not had an opportunity to clarify whether a doctor who negligently performs a tubal ligation procedure, but who then informs the patient of her continued fertility, may be sued for the future costs of raising a subsequently conceived child to the age of majority. Upon review, the Court held that those particular damages are only available when a doctor has breached a duty to inform. In this case, the Court of Appeals held otherwise, concluding that notice of continued fertility, or lack thereof, was merely a factor for the jury to consider as questions of causation and comparative fault. Accordingly, the Supreme Court reversed the Court of Appeals and affirmed the district court's dismissal of this action. View "Provencio v. Wenrich" on Justia Law