Montaño v. Frezza

• Decision Date: 19 March 2015
• Docket Number: 32,403.,No. 35,214.,No. 35,297.,35,297.,35,214.
• Citation: 352 P.3d 666
• Parties: Kimberly MONTAÑO, Plaintiff–Appellee, v. Eldo FREZZA, M.D., Defendant–Appellant, and Lovelace Insurance Company, a domestic For–Profit Corporation, Defendant.
• Court: Court of Appeals of New Mexico

352 P.3d 666

Kimberly MONTAÑO, Plaintiff–Appellee

v.Eldo FREZZA, M.D., Defendant–AppellantandLovelace Insurance Company, a domestic For–Profit Corporation, Defendant.

32,403.

No. 35,297.

No. 35,214.

Court of Appeals of New Mexico.

March 19, 2015.

Certiorari Granted, June 19, 2015,

Certiorari Granted, June 19, 2015,

Jones, Snead, Wertheim & Clifford, P.A., Jerry Todd Wertheim, Roxie De Santiago, Samuel C. Wolf, Elizabeth C. Clifford, Santa Fe, NM, for Appellee.

Hinkle, Hensley, Shanor & Martin, LLP, William P. Slattery, Dana S. Hardy, Zachary T. Taylor, Santa Fe, NM, for Appellant.

Rodey, Dickason, Sloan, Akin & Robb PA, Nelson Franse, Brian Brack, Albuquerque, NM, for Lovelace Insurance Company.

OPINION

BUSTAMANTE, Judge.

{1} This case is one of three presently before the Court of Appeals that involve the asserted medical negligence of then Texas-based physician Dr. Eldo Frezza. See Gonzales v. Frezza, COA No. 32,606, and Gallegos v. Frezza, COA No. 32,605. The issue presented in this case is whether Dr. Frezza should enjoy the immunity granted by the Texas Tort Claims Act (TTCA) when he is sued by a New Mexico resident in a New Mexico court. We conclude that under principles of comity Dr. Frezza is entitled to immunity, but only so far as that immunity is consistent with the New Mexico Tort Claims Act (NMTCA). We also conclude that the district court's order was too broadly worded. Hence, we affirm in part and vacate in part the district court's ruling and remand for further proceedings.

BACKGROUND

{2} Like the plaintiffs in the other two cases, Ms. Montaño, a New Mexico resident, traveled to Lubbock, Texas to undergo bariatric surgery by Dr. Frezza at the Texas Tech University Health Sciences Center (the Center). Ms. Montaño had been told by her insurer, Lovelace Insurance Company (Lovelace), that Dr. Frezza was the only bariatric surgeon for whom it would provide coverage. For approximately six years, Ms. Montaño traveled to Lubbock for follow-up care and treatment by Dr. Frezza for complications arising from the surgery. Eventually, testing by another doctor revealed gastrointestinal bleeding

caused by an “eroding permanent suture.” That doctor performed corrective surgery.

{3} At all times relevant to this case, Dr. Frezza was an employee of the Center, which is a governmental unit of the state of Texas. See Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex.App.2008) (stating that the center is a governmental unit). The Center established Texas Tech Physician Associates (TTPA) to administer managed care contracts for its physicians, including the contract with Lovelace. Although not a party to the contract, Dr. Frezza was a “represented physician” subject to the terms of the contract. Additional facts are included in our discussion.

{4} Ms. Montaño filed suit against Dr. Frezza and Lovelace, alleging breach of contract and negligent referral by Lovelace, medical negligence by Dr. Frezza, violation of the New Mexico Unfair Practices Act by both Dr. Frezza and Lovelace, and lack of informed consent. Dr. Frezza filed two motions for dismissal. One motion asserted that New Mexico did not have personal jurisdiction over him. In the other he argued that as a Texas public employee he was immune from suit under the TTCA. See Rule 1–012(B)(2), (6) NMRA. The district court determined that New Mexico law, not the TTCA, should be applied. The district court also concluded that Dr. Frezza had sufficient contacts with New Mexico such that New Mexico courts court assert personal jurisdiction over him. The district court then denied both motions. Dr. Frezza filed a motion to reconsider the denial of his motion to dismiss based on personal jurisdiction. The motion to reconsider is still pending below.

{5} Dr. Frezza petitioned this Court for a writ of error under the collateral order doctrine, arguing that the district court erred in concluding that New Mexico law applied. See Rule 12–503 NMRA. The petition, which addresses only this issue, was granted.

DISCUSSION

A. The Petition for Writ of Error was Appropriately Granted

{6} We begin by addressing whether the district court's decision to apply New Mexico law is appropriate for appellate review under the collateral order doctrine. Generally, appeal lies only from a “final judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights[.]” NMSA 1978, § 39–3–2 (1966). “The principle of finality [evinced in this statute] serves a multitude of purposes, including the prevention of piecemeal appeals and the promotion of judicial economy.” Handmaker v. Henney, 1999–NMSC–043, ¶ 7, 128 N.M. 328, 992 P.2d 879. An exception to this preference for finality is known as the collateral order doctrine, “whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal.” Carrillo v. Rostro, 1992–NMSC–054, ¶ 16, 114 N.M. 607, 845 P.2d 130 (internal quotation marks and citation omitted). To permit review under the doctrine, “(1) the order must finally determine the disputed question; (2) it must concern an issue that is entirely separate from the merits of the claim; and (3) there must be no effective remedy by appeal.” Handmaker, 1999–NMSC–043, ¶ 9, 128 N.M. 328, 992 P.2d 879.

{7} Our cases have held that where an order addresses a party's immunity from suit, as opposed to immunity from liability, it satisfies the collateral order doctrine criteria. See Campos de Suenos, Ltd. v. Cnty. of Bernalillo, 2001–NMCA–043, ¶ 15, 130 N.M. 563, 28 P.3d 1104 (stating, “We issue writs of error to review immunity from suit cases because we consider them collateral order[s] affecting interests that would be irretrievably lost if the case proceeded to trial.” (alteration in original) (internal quotation marks and citation omitted)); accord Handmaker, 1999–NMSC–043, ¶ 14, 128 N.M. 328, 992 P.2d 879 ; Carrillo, 1992–NMSC–054, ¶ 20, 114 N.M. 607, 845 P.2d 130 ; Sugg v. Albuquerque Pub. Sch. Dist., 1999–NMCA–111, ¶ 8, 128 N.M. 1, 988 P.2d 311 ; cf. Carmona v. Hagerman Irrigation Co., 1998–NMSC–007, ¶ 21, n. 5, 125 N.M. 59, 957 P.2d 44 (“The [NMTCA] provides immunity from liability, not absolute immunity from suit, so the collateral order exception to the finality of judgments rule would not apply in this case.”).

{8} To the extent that Ms. Montaño argues that the writ of error was improvidently granted because the collateral order doctrine criteria were not satisfied, we disagree. Ms. Montaño contends that the real question before the district court depended on the nature of TTPA's contract with Lovelace and thus the district court's order (1) did not resolve the question, and (2) was dependent on the merits of the case. But the question before the district court was a basic one: whether New Mexico or Texas law should apply. As will be seen in our discussion below, the answer to this question does not involve detailed examination of the facts related to Dr. Frezza's practice. Application of Texas law here would result in dismissal of Ms. Montaño's suit against Dr. Frezza because the TTCA does not permit suits against government employees acting within their employment.See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f) (West 2013). Because the choice of law encompasses whether Dr. Frezza is immune from suit, the decision necessarily implicates a right that would be “irretrievably lost” if not heard by this Court. See Campos de Suenos, Ltd., 2001–NMCA–043, ¶ 15, 130 N.M. 563, 28 P.3d 1104. We conclude that the district court's order is properly before us for review.

B. New Mexico Law Applies

{9} We turn to whether the district court properly analyzed whether New Mexico or Texas law governs Ms. Montaño's suit. In doing so, we “review the district court's decision to use a comity analysis de novo, and then review a district court's application of comity for abuse of discretion.” Sam v. Sam, 2006–NMSC–022, ¶ 9, 139 N.M. 474, 134 P.3d 761. Dr. Frezza does not challenge the district court's decision to embark on its comity analysis. Thus, as to the comity issue, we only determine whether the district court's decision exceeded the bounds of its discretion. We begin, however, by addressing the “place-of-the-wrong” rule, and then address whether the district court properly analyzed whether Texas law should apply under principles of comity.

{10} Although some states have adopted the “most significant relationship” approach to the choice of law, the New Mexico Supreme Court has continued to endorse the “place-of-the-wrong” rule in choice of law cases. Terrazas v. Garland & Loman, Inc., 2006–NMCA–111, ¶¶ 12, 14, 140 N.M. 293, 142 P.3d 374 (stating that “New Mexico courts have steadfastly applied the lex loci delicti rule in tort cases”); see Restatement (Second) of Conflict of Laws § 6 (1971) ; 15A C.J.S. Conflict of Laws § 38 (2014). Under this rule, “the substantive rights of the parties are governed by the law of the place where the wrong occurred.” Terrazas, 2006–NMCA–111, ¶ 12, 140 N.M. 293, 142 P.3d 374. “The place of the wrong ... is the location of the last act necessary to complete the injury.” Torres v. State, 1995–NMSC–025, ¶ 13, 119 N.M. 609, 894 P.2d 386 (internal quotation marks and citation omitted).

{11} But the place-of-the-wrong rule may give way when policy considerations outweigh its application. See In re Estate of Gilmore, 1997–NMCA–103, ¶ 18, 124 N.M. 119, 946 P.2d 1130 (“[P]olicy considerations may override the place-of-the-wrong rule.”). For instance, in Torres, the New Mexico Supreme Court held that New Mexico law should apply where the alleged negligence of the Albuquerque Police Department resulted in a death in California because “public policy dictates that New Mexico law determine the existence of duties and immunities on the part of New Mexico officials.” 1995–NMSC–025, ¶ 14, 119 N.M. 609, 894 P.2d...