New Mexico Injury Attorney Blog

The debate over frivolous lawsuits almost always leads to the McDonald's scalding hot coffee case. The case, Liebeck v. McDonalds's was filed in Albuquerque's Second Judicial District Court. The outcome was a jury verdict of $160,000 in compensatory damages which reflected a finding of 20 percent comparative negligence on the part of Stella Liebeck. In addition, the jury awarded $2.7 million in punitive damages. This is the portion that gets everyone so excited.

There are many misconceptions about what happened. Many argue that Ms. Liebeck was driving, the coffee was normal temperature, that she knew she could get burned and that somehow it was her own negligence that caused the injuries. Finally, it is often suggested that Ms. Liebeck suffered only minor injuries. The jury did find her 20% responsible. The rest is false.

Ms. Liebeck was not driving. She was a passenger in the car. The car in which she was a passenger was not moving, it was parked so that she could put cream and sugar in her coffee. The coffee was 185 degrees, where industry and safety standards dictated that the coffee be no hotter than 155 degrees to avoid serious burns.

As Ms. Liebeck was opening the Styrofoam cup to put in sugar and cream, the cup collapsed pouring the entire contents of the cup into her lap. Ms. Liebeck suffered 3rd degree full thickness burns over 6 percent of her body around her groin, buttocks, and thighs. She was hospitalized for 7 days where she underwent skin grafting, and very painful daily debridement treatments to prevent infection which can prove fatal in burn cases.

So why the $2.7 million in punitive damages? McDonald's had documented over 700 similar incidents with its coffee, many also resulting in 3rd degree burns. McDonald's knew of the danger. McDonald's also knew that the temperature of their coffee posed a risk to patrons. It was well documented both within and outside McDonald's that 185 degree coffee posed a serious risks of injury to customers. McDonald's also recognized and admitted that the industry standard, due to safety issues, was to maintain coffee temperature at 145-155 degrees. The risks was even more pronounced due to the fact that the very purpose of the drive-through coffee sales was to put coffee in the hands of drivers in moving vehicles, a combination certain to lead to spills.

In short, McDonald's was well aware of the danger of its coffee. Ms. Liebeck to the contrary had no reason to expect that a coffee spill would result in 3rd degree full thickness burns over 6 percent of her body. There was simply no reason for Ms. Liebeck to expect such injuries, nor any reason for her to take extraordinary caution to protect against them.

Despite the clear finding of liability and fault and a finding that McDonald's action was reckless, callous and willful, and that $2.7 million represented only 2 days of coffee sales, the court reduced the punitive damages to $480,000. The parties eventually settled. The final settlement amount is not known to the public but rest assured it was much higher than the original offer of settlement of $20,000 from Ms. Liebeck to cover her medical expenses.

So why bring up the McDonald's coffee lawsuit now? McDonald's is back in the news with a lawsuit related to exploding pockets of grease in its chicken sandwiches. The news and commentators should be bristling with outrage in the coming weeks over the audacity of a McDonald's patron to sue over what surely must be an assumed risk of eating at McDonald's.

Certain to be absent from the these discussions is corporate arrogance, greed and irresponsibility that led McDonald's to refuse a modest offer of settlement in the coffee case, and now leads them to dodge responsibility for explosive chicken grease in its sandwiches. I guess it is asking too much for McDonald's to accept responsibility and fix the problem on its own. Instead, McDonald's is forcing the litigation which if its gamble does not pay off it will later herald as the downfall of democracy, capitalism, and everything we hold dear in America.

www.CollinsAtttorneys.com

Personal injury lawsuits can often take a very long time. They are often highly stressful on a marriage for a number of reasons. Many times, the injured person is in significant pain following an injury. This can cause a lot of marital friction. In addition, the injured person many times cannot work causing serious financial strain on the marriage. Finally, the injuries will on occasion severely interfere with the intimate relations of the couple. All these strains can lead to divorces in the middle of a personal injury lawsuit or soon thereafter.

The question that arises is whether the personal injury verdict or settlement is community property in New Mexico. The answer is partly yes, mostly no. A personal injury lawsuit results in compensation for damages associated with the individual's injuries. These damages include compensation for the physical injuries as well as the pain and suffering associated with those injuries. In a nutshell, compensation for physical injuries and pain and suffering are not community property. The damages are awarded to compensate the individual for injuries personal to the individual.

However, personal injury settlements also often include amounts for damages beyond the physical damages and pain and suffering. They typically will include damages for medical expenses (past and future) and lost earnings (past and future). These can be far more difficult to classify.

For medical expenses, the classification of the recovery is dependent upon the source of funds for those medical expenses. If the medial expenses were paid out of community funds, then the recovery for medical expenses is community property. However, if the medical expenses were paid from insurance, then the bulk of the recovery for medical expenses is not community property.

The calculation becomes more complex in the case of future medical expenses. Certainly, any medical expenses incurred after the marriage would be separate property. The issue would be complicated in a case where the divorce is pending, or not yet begun, at the time that future medical expenses are awarded. This would require a calculation of the separate portion of those medical expenses still remaining at the time of the divorce, whenever that might occur. This is something that would be addressed in a Marital Settlement Agreement in the property division, or by trial if necessary. It might require the assistance of an expert in accounting or annuities to properly classify the community portion of the settlement.

Lost income is accounted for in much the same way. Any income during the marriage is community property. Therefore, any losses of income accrue to the community. As such, compensation for these losses is also community property. Again, the real complication arises in considering future lost wages. In cases of serious personal injury, the future lost income may represent the vast majority of any settlement or verdict. This is particularly so when the injured person is no longer able to work at all. The calculation of future lost income can be somewhat complicated. In a nutshell , however, future lost earnings involves a calculation of the individual's expected future income over the remainder of his or her working life based upon a variety of factors that indicate income potential. The resulting figure is then amortized back to the present for the calculation of future lost wages.

Clearly, income earned following a divorce is separate property. Income following a legal separation is also separate. Again, the timing of the divorce is critical. If the divorce occurs prior to the final verdict or settlement, then future lost income is clearly separate property and not an issue. If the divorce occurs following the verdict or settlement, then the lost wages will be apportioned according to the date of divorce.

Other complications occur as well. In many cases, the personal injury funds end up getting commingled with other community property such as home improvement projects. This sort of commingling can seriously complicate the allocation of the personal injury verdict or settlement between community and separate property.

The bottom line is that anyone involved in personal injury litigation should consider these issues very carefully if the marriage is on the rocks. The issues can become quite complicated and convoluted. Consultation with an attorney, both family law and personal injury, would be well advised to avoid any possible unpleasant surprises in the division of the verdict or settlement as community property.

www.CollinsAttorneys.com

Punitive damages are a hot topic both for businesses and for individuals harmed by the conduct of businesses. Punitive damages are just that, "punitive". They are awarded above and beyond compensatory damages to punish outrageous and dangerous corporate behavior. More importantly, they serve the purpose of deterring future bad behavior. Punitive damage are relatively rare awarded only in cases of extreme behavior. They come into play only when the safety of the public is at stake.

In light of the rarity of punitive damages awards and the purpose that they serve which is to protect the public from reckless and irresponsible corporate behavior, the bill moving through South Carolina is pretty remarkable. The South Carolina House approved, by a vote of 104-9, a tort reform measure which would limit punitive damages across the board to $350,000.

The rationale for the bills is faulty on several grounds. The primary argument is that it is an economic development tool made necessary because nearby states, including Florida, Georgia and North Carolina, have passed similar measures. It is argued that businesses will not locate in South Carolina without the $350,000 cap. The implicit suggestion is that punitive damages are out of control in the State.

The reality could not be further from the truth. The South Carolina Trial Lawyers Association found 136 personal injury verdicts in South Carolina's 3 largest counties in all of 2007 and 2008. Of these, only seven included punitive damges, and only 2 of the 7 included punitive damages greater than $7000. This reinforces the fact that punitive damage awards are both rare and stingy. If a company has engaged in such outrageous behavior to incur punitive damages at these odds, is this the kind of business that South Carolina or any other state would want to attract?

Secondly, it is argued after all, "Isn't $350,000 really enough to deter bad behavior?" Ask Toyota this question. Apparently, Toyota saved $100 million by limiting the recall on its vehicles leaving millions of defective vehicles on the roads. In the meantime, uncontrolled and sudden acceleration of Toyota and Lexus vehicles led to 2000 accidents and over 30 deaths.

Arguments for caps on punitive damages, like tort reform arguments generally, ignore the fact that there are companies that behave very poorly, motivated only by profit with little or no consideration for the safety of the public. The deterrent effect of punitive damages lies in the possibility of financial hardship for those that ignore the public's safety. Punitive damages are typically calculated as a measure of corporate income. The jury is left, within reason, to determine what amount of a company's annual income would serve to properly punish the reckless corporation while also deterring other like-minded companies in the future. The amount must be significant to serve a deterrent purpose.

Many companies spend significantly more on their corporate retreats $350,000. Is this amount really enough to deter reckless profit only driven corporate behavior to take away a golf outing? South Carolina is known for its golf. Perhaps, now we are have arrived at the real root of the argument.

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Auto accidents are among the leading causes of death of teenagers and young adults (ages 15-24) in New Mexico. Youth, drinking and driving is a lethal mix with often lethal consequences. The DWI/DUI laws and underage drinking laws in New Mexico are very strict to avoid the tragedy of youthful DWI/DUI accidents.

There are strict laws against underage drinking including felony charges for providing alcohol to underage drinkers. These penalties can be particularly harsh for service of alcohol to minors. However, despite these laws, minors often manage to obtain alcohol as a result of negligent or reckless bartenders, hosts, clerks or cashiers. Unfortunately, this negligence or recklessness can result in catastrophic injury and sometimes wrongful death.

Fortunately, New Mexico law holds these individuals and entities accountable for the damages caused by their negligence under dram shop laws, social hosts laws, and criminal laws designed to protect individuals from such behavior.

A recent case in California illustrates the law, the possible harm, and the potential recovery for injuries arising out of dram shop or negligent social host situations. The case of Apodaca v. Bradley involved two 20 year olds, Joshua Apodaca and Sean Patrick Bradley, who were served alcohol at a Sonoma County winery during a wedding reception, and then again at convenience store following the reception. The two were served alcohol at the wedding reception despite failing to present identification. Even more remarkably, they were later sold alcohol by a convenience store again with no identification which they then consumed in the store's parking lot.

Bradley who was driving crashed his car into a rock wall as the two travelled home. Apodaca suffered closed head traumatic brain injuries. Apodaca's brain injuries led to severe and permanent cognitive and motor deficits.

Unlike New Mexico, apparently California does not have formal dram shop laws. Instead, the lawsuit was brought under specially enacted laws to address teenage DWI/DUI. The result was a $3.1 million settlement. The winery contributed policy limits of $3 million under its insurance policy. The parents of Bradley contributed their policy limits of $100,000. Bradley himself contributed $5000.

The $3.1 million can never fully compensate Apodaca for all of the damages associated with his severe traumatic brain injury. Apodaca will likely suffer a lifetime of pain and suffering, loss of enjoyment of life, and permanent mental and physical limitations. The loss of income and earnings over his lifetime associated with his injuries are hard to calculate due to his youth. Rest assured, however, even a moderate income over his working life would approach the value of the settlement.

Instead, the bulk of the settlement proceeds will go toward a lifetime of medical care and expense for Apodaca. There will likely be little left to address his remaining damages. Unfortunately, this is often the reality of auto accidents, where there is inadequate insurance to compensate injured persons. In New Mexico, a $3.1 million settlement in an auto accident is extremely rare due to the high level of uninsured/underinsured motorists in the State. Though the settlement cannot possibly compensate Apodaca for his injuries, it is far better than the outcome in most DWI/DUI accidents where there simply is no insurance or financially responsible party to compensate the accident victim other than his or her own uninsured/underinsured motorist coverage.

www.CollinsAttorneys.com

In my last article, I addressed the high medical error rate in U.S. hospitals. The numbers are staggering and completely undermine tort reform arguments, medical malpractice award caps, and all those fighting healthcare reform that invariably use the myth of frivolous medical malpractice lawsuits in their attacks on reform.

The medical community recognizes the high error rates in hospitals and has responded stating that it is taking step to reduce medical mistakes. The Joint Commission, which accredits hospitals, launched a program called "Speak Up" to encourage patients to protect themselves from medical error. At the same time, it was recognized that medical professionals do not always respond positively or listen to input from patients with doctors interrupting their patients on average after only 23 seconds of this essential input. The Joint Commission stated further, "One way that you can help us is by checking everything we do." Hum?

Thus, the medical community recognizes the problem and at least partly passes responsibility to the patient. Naturally, the medical community does not back down on its arguments for lower medical malpractice award caps. Nor does it recognize that the typical response in case of medical errors is a denial of liability and it is this denial that forces litigation and pushes the evil trial lawyers into action.

The tips on surviving a hospital stay are interesting, and lead one to wander about the veracity and the motivations of the Tort Reform arguments. You are encouraged to bring an advocate to speak up for you when you are unable to speak up for yourself. I guess this would be following almost any surgery.

This leads to the next nugget of wisdom in surviving your hospital stay, "Avoid Wrong Site Surgery." It is said that your surgeon, or you I suppose keeping in mind the propensity of doctors to ignore their patients mentioned above, should mark your surgery site. That is sound advice. You would hope that this would be a high priority in surgery, but apparently the patient is ultimately responsible for this detail.

The patient should also prepare a full "health profile" listing medical conditions, allergies, and medications. As a patient, it is further suggested that you should bring all medications with you to avoid misspelling the names, or misstating the dosage and usage directions. Again, this is a task most patients would assume the medical staff would address. And realistically, shouldn't a patient be entitled to this expectation?

I will address just one more hospital survival tip set forth in the USA Today article. A patient should check all medications before accepting them from the medical professional dispensing the drug. In addition, the patient should make sure the medical professional dispensing the medication knows who you are insuring that they read your identification wristband. I guess a necessary follow up suggestion would be, "Don't fall asleep in the hospital."

These survival tips are more frightening than helpful. In fact, many patients are simply not able to perform these duties. Even educated and motivated patients would have trouble with the complete medical profile. The very suggestion that a patient should be responsible for marking a surgical site completely undercuts all legitimacy of tort reform arguments, medical malpractice caps and the myth of frivolous medical malpractice lawsuits. Will there come a day when the patient is then held responsible for incorrectly marking the surgical location?

What is the motivation of the Tort Reform movement? It clearly is not the protection of the public. The same question and conclusions arise when you raise the motivations of those fighting against healthcare reform. Draw your own conclusions. And eat your vegetables.

www.CollinsAttorneys.com

The debate over healthcare reform always leads eventually to the evil of trial attorneys. It has become a mantra of any self respecting conservative politician that medical malpractice lawsuits are crippling the healthcare system while victimizing the good doctors and nurses around the country who strive only to serve the public good.

Having read some of the statistics on medical errors, it is frivolous medical malpractice lawsuits are pure myth. Looking into it further, to be sure, I came across a cite to a 2007 article from USA Today entitled "Patient Protect Thyself" by Liz Szabo. I googled the title, and surprisingly numerous articles came up with similar names. Interestingly, there were also a number of self-help guides written so that patients and their families could protect them from harm at the hands of doctors, nurses and staff during a stay in the hospital. USA Today had such an article as did Reader's Digest which is not known for its liberal bias.

So the question arises if these and other news outlets have seen fit to publish guides for patients to protect themselves against medical errors and negligence, how big is the problem and how big is the myth? The answer is BIG! Frighteningly so for anyone facing hospitalization. Here are some of the numbers from the USA Today article:

• A Harvard School of Public Health study found that 34% of all people, and 50% of those with chronic conditions, report that they or a family member have experienced a medical error.
• The Institute of Medicine estimates that hospitalized patients will suffer at least one medication error per day during a hospital stay.
• It is estimated that as many as 98,000 Americans die each year as a result of medical error. By contrast, 58,148 soldiers died during the entire Vietnam War from 1958 to 1973.
• According to the Centers for Disease Control and Prevention, close to 2 million patients per year catch an infection in the hospital and nearly 90,000 die, while it is estimated that only about 35% of hospital employees consistently wash their hands before contact with a patient.

These statistics are pretty sobering. How do you survive these odds? USA Today and others have created checklists. Basically, it is up to you. The medical profession has come to the conclusion that it is the patient that must take the initiative to protect him or herself. It is hard to know what to think of these conclusions and even more difficult to reconcile these conclusions with Tort Reform arguments.

A few of the more surprising survival skills needed to survive a hospital stay in American will be addressed next. I caution you in advance, the helpful survival tips provide little comfort to those facing a hospital stay, and raise even more questions regarding the claims of medical malpractice litigation abuse by the Tort Reformers.

www.CollinsAttorneys.com

The Albuquerque Journal reports that Toyota officials bragged about the $100 million it saved by negotiating with the government for a limited recall related to the problem with sudden acceleration of its vehicles. It is reported that internal corporate memorandum noted the limited recall of floor mats among "Wins for Toyota - Safety Group." The limited recall was in lieu of the broader recall associated with product and design defects with accelerator pedals and brakes.

The New York times further reported that Leading Democrats on the House Energy and Commerce Committee alleged that Toyota had relied on flawed studies in dismissing the possibility that computer issues were possibly the cause of sticking accelerator pedals on millions of cars. It then issued misleading statements to Toyota owners minimizing the problem.

It is estimated that there have been over 2000 incidents and over 30 deaths involving uncontrolled and sudden acceleration of Toyota and Lexus vehicles. One of the more notable incidents occurred in August 2009 causing the death of a California police officer and three of his family members. This incident led to much of the impetus behind the investigation of the defective vehicles.

Toyota's irresponsible, callous and dangerous indifference to the safety of its consumers points to the flaws in the Tort Reform movement. Tort Reformers cast trial attorneys as a plague on society. In reality, trial attorneys as Toyota will soon find, act as a check on corporate greed. Without product liability law developed compliments of trial attorneys over the past 50 years, corporations would use the same ruthless economic calculus that appears to be at work in the consumer safety decisions of Toyota. Unfortunately, the reality is that purely financial analysis of consumer safety rarely benefits consumers.

In fact, viewing the calculation, 19 deaths might have appeared acceptable from Toyota's math. What is the value of 30 lives? Toyota clearly thought it was less than $100 million. How many lives are worth $100,000 million in savings?

Compensatory damages alone should top the $100 million in savings. But the real problem for Toyota is punitive damages. Punitive damages provide the real deterrent to irresponsible corporate greed that, as in this case, can lead to defective products in the marketplace. Punitive damages are meant to deter future bad behavior both for the defendant and others prone to engage in similar behavior. Punitive damages are a function of bad behavior and corporate income. Punitive damages, where morality fails, dictate that the safety of consumers enter the profit equation. Perhaps Toyota failed to anticipate that its decision-making processes would become public, but it is these processes that justify punitive damages.

Fortunately for New Mexico consumers, New Mexico courts and judges are prone to protect consumers and the general public. In fact, New Mexico has been designated a "judicial hellhole" for corporate defendants, something for which its citizens should be thankful. Though these cases will land in federal court, the federal court will apply New Mexico law on punitive damages. New Mexico's law on punitive damages does not look favorably on corporate behavior that puts the safety and lives of New Mexico consumers at risk.

Assuming the reports of the Albuquerque Journal and New York times are accurate, if there was ever behavior suggesting punitive damages, Toyota's weighing of costs and benefits of fixing known defects in its vehicles demands them.

www.CollinsAttorneys.com

Work related injuries in New Mexico, as in most states, typically leave the injured workers grossly under-compensated in cases of serious or permanent injuries or wrongful death. With on the job injuries, the worker is typically limited to recovery under the Workers Compensation Act.

There are exceptions. An injured worker can recover damages beyond the limits of the workers compensation statutes when a third party has caused the injuries by suing that third party. In addition, in the case of on the job auto accidents in work vehicles, the injured worker may obtain additional relief under the employer's uninsured/underinsured motorist coverage.

The recent case of Marckstadt v. Lockheed Martin (consolidated with Federated Service Insurance v. Martinez) forcefully reiterates the right to recovery under an employer's uninsured/underinsured motorist coverage. In these consolidated cases, employees had been injured in auto accidents while driving their work vehicles. In both cases, the other driver was underinsured. Likewise, in both cases, the injured worker made claims against the employer's uninsured/underinsured coverage on the vehicles.

Naturally, the insurance companies in both cases denied coverage. In both cases, the insurance companies argued that it was the intent of the insured employers to reject uninsured/underinsured coverage. However, there was no written rejection of uninsured/uninsured motorist coverage (UM/UIM). In the case of Lockheed Martin, there was an X on a form indicating that UM/UIM had been rejected. However, it was not clear who put the X on the form and only after the accident did Lockheed Martin actually sign a written rejection. Neither was there a signed written rejection in the Federated case though it was clear that the insured employer intended to reject coverage.

The Court ruled that though an actual signature was not required to reject coverage,and the rejection did not have to be attached to the policy, the rejection did have to be in writing no matter what the intentions of the parties. The Court recognized that the requirement of a writing was set forth in NMAC §13.12.3.9. The Court also recognized the problems with interpreting unwritten intentions, the possibility of fraud on the injured worker in these cases to avoid underinsured/uninsured coverage, and the litigation that would ensue if the writing requirement were not in place.

If you are injured on the job in a work vehicle as a result of negligence other than your own negligence, you may be entitled to recovery of damages beyond those limitations set forth in the workers compensation act. If the other party lacks insurance or is underinsured, and you have suffered serious or permanent injuries, then you should determine the availability of uninsured/underinsured coverage on your employer's vehicle(s). Due to the severe limitations of workers compensation, and the lack of insurance with the other driver, this may be the only way to recover fully on your injuries and other damages.

www.CollinsAttorneys.com

Hidden cameras are playing an important role in the investigation of nursing home abuse and neglect cases. Hidden cameras placed by the family of one abused residence revealed severe abuse of a nursing home stroke resident. The Attorney General in New York has implemented a program of hidden cameras in nursing homes for the detection of abuse and neglect in an expansive effort aimed at the protection of nursing home residents.

In Arrellano v. Fillmore Convalescent Center, the family of Maria Arellano placed hidden cameras in her room after the management of the facility refused to investigate abuse and neglect reported by the family for more than a year prior to placing the hidden cameras. The family had noticed bruising on Ms. Arellano's face, arms and legs which could not be explained since Ms. Arellano was bed-ridden. The facility ignored the family and refused to investigate the claims. The family was forced to insert the hidden cameras in the room for the protection of Ms. Arellano. The camera captured very disturbing behavior on the part of a nursing home employee, Monica Garcia, showing her pulling Ms. Arellano by the hair, slapping her, dragging her, and violently bending her wrists, fingers, and neck.

The abuse was so severe that Ms. Garcia was charged criminally and eventually pled to criminal battery. It is unfortunate that hidden cameras were necessary for the protection of Ms. Arrellano yet this was the only way to properly investigate the abuse since the nursing home facility, Fillmore Convalescent, refused to take any action on its own. In the end, a California jury awarded a total of $7.75 million to Ms. Arellano. Of the $7.75 million award, $5 million was awarded for punitive damages while $2.75 million was awarded for compensatory damages.

The use of hidden cameras is a powerful tool for those who have the wherewithal to use this tool to protect against nursing home abuse and neglect. The New York Attorney General has begun using hidden cameras for the investigation and prosecution of abusive nursing home employees. The Attorney General has used hidden cameras for the arrest and prosecution for both abuse of residents as well as what appears to the problematic practice of falsifying records in efforts to cover up abuse and neglect. Attorney General Cuomo stated that the practice was part of ongoing efforts to investigate and prosecute individuals who "shamelessly mistreat Long Island's most vulnerable patients."

It is unfortunate that hidden cameras are necessary for the protection of nursing home residents. These residents are often completely helpless to defend themselves. As in the Arellano case, they are often unable to even report the abuse due to their condition. The resident, the family, and society place their trust in these facilities to protect society's most vulnerable members. The breach of this trust is unacceptable. Abuse and neglect of nursing home residents is a moral outrage. It is should not be tolerated by a resident, a family or society. Attorney General Cuomo's program is a welcome development on the law enforcement front to insure that this misconduct does not go unpunished.

Sadly, though most of these facilities do perform competently and professionally, there remain those that simply have not gotten the message. There are far too many that continue to prey on the weakness of their helpless patients even when the families report abuse and neglect to management. The refusal to implement protections is generally economically driven. Damage awards as in the Arellano case serve to change the economic calculation. Where morality and basic human decency is not enough to change behavior, money often is. Punitive damages serve this important deterrent function.

www.CollinsAttorneys.com

A report by Public Citizen debunks the myth of frivolous medical malpractice claims. In fact, the report indicates that medical malpractice payments are at record lows.

The report provides some interesting statistics that the tort reform movement neglects to mention in their constant ranting about trial lawyers preying on the medical community. The report states that there are a least 3 deaths caused by medical errors for every single medical malpractice payment of any kind.

These statistics make clear that medical malpractice awards are actually rare, and perhaps more rare than can be justified by public safety. Public Citizen reviewed the National Practitioner Data Bank which has been tracking this data since 1990. The group found that there were only 11,037 payments in 2008 nationally. This number was right at 31% lower than the average number of payments in all previous years.

These numbers reflect 13.5 medical malpractice payments per million physicians in 2006 which apparently is the last available data for the number of practicing physicians U.S. The costs of medical malpractice, including insurance premiums, is one fifth of one percent of all health care costs.

In fact, if anything, there are far fewer lawsuits than are justified by actual medical negligence. The Public Citizen report cites a 1999 study entitled "To Err Is Human" from the Institute of Medicine's (IOM). The IOM study found that between 44,000 and 98,000 Americans die each year due to avoidable medical errors. In 1999, fewer than 15,000 people total, including non-fatal incidents, received any compensation at all for their injuries. In 2008, that number was just over 11,000.

These numbers clearly illustrate the falsity of tort reform arguments. Medical malpractice is not a burden on health care. In fact, the vast majority of those injured by medical malpractice receive no compensation of any kind. Likewise, the doctors and hospitals responsible for those injuries escape the burden of their harmful behavior.

Instead, the financial burden is shifted from the responsible medical provider to the innocent patient who may have suffered permanent injuries or death. The burden is shifted to the patient and his or her family who may have suffered catastrophic damages in the form of permanent impairment or wrongful death along with the resulting loss of income to the family. In turn, this burden is most often shifted to society as a whole when future medical care, which may last a lifetime, must be provided by Medicaid or Medicare. It is shifted further to society when the injured person is placed on Social Security Disability, or the family is left destitute in the case of wrongful death.

The title of the IOM report sums it up "To Err is Human." Doctors, as do we all, do make mistakes. The rest of us pay for our mistakes. Why is the medical profession exempt? What about going to medical school justifies that doctors, who have our health and lives in their hands, should be immune from responsibility for their mistakes?

The professions should be held to a higher standard than the general public, not a lower standard. Acceptance of responsibility for harm done to patients is fundamental to professionalism. The absence of responsibility is a disservice to the public, and a disservice to the vast majority of medical professionals that do perform their jobs professionally and competently.

Should any industry that causes 44,000 to 98,000 deaths per year through the negligence or incompetence of its some of its members be allowed to cry injustice because their insurance premiums have gone up slightly? Perhaps they should be arguing against their insurance companies and not against the compensation of injured patients.

Birth injuries often have permanent and catastrophic consequences for the injured baby and the family. Birth injuries are not always preventable. There are birth injuries that simply cannot be avoided. On the other hand, birth injuries on many occasions result from medical negligence. In these cases, the child and the family are entitled to the recovery of damages caused by the medical malpractice.

Medical malpractice claims are generally very difficult to bring. There is a strong presumption that the doctor or doctors acted in a professional manner. It must be proven that the doctors' care fell below, and generally well below, the established standard of care in the medical community. The doctor is basically held only to a standard of care that could be reasonably expected under the circumstances.

Proving a doctor negligent is much easier said than done. In addition, doctors and hospitals are often very reluctant to admit medical negligence. As a result, the injured plaintiff must typically obtain an expert medical opinion of his or her establishing the medical negligence. A medical malpractice claim can be long, difficult, emotionally stressful and financially expensive, and in the end juries are often extremely sympathetic to doctors giving them every benefit of the doubt.

This makes verdicts like two recent medical malpractice birth injury cases in New York very remarkable. Both cases, as is often the case in birth injury cases, involved oxygen deprivation at delivery. One case involved a 25 year old plaintiff, Tiffany Busone, who suffered cerebral palsy and spastic quadriplegia due to oxygen deprivation. In addition, the doctors failed to resuscitate her or to recognize that the umbilical cord was suffocating her aggravating her injuries. The second case also involved a 3 year old plaintiff, Diego Baizan, who suffered oxygen deprivation during delivery with the baby in oxygen distress during delivery for over an hour before the doctors ordered a Caesarian delivery. Again, the oxygen deprivation caused cerebral palsy which is common result of this type of birth injury.

In both these cases, the plaintiffs were awarded very large jury verdicts. Tiffany Busone was awarded $43.5 million while Diego Baizan old was awarded $77 million. In the case of Diego Baizan the $77 million verdict was against the hospital who unlike the doctor in the case refused to settle pretrial. Ms. Busone suffered primarily physical injuries and was functioning at a high intellectual level. Diego Baizan suffered severe brain damage. Each will require a lifetime of medical care and treatment for their injuries.

These cases bring up a couple of interesting legal points. The first regards the statute of limitations. In New Mexico, the statute of limitations is only 3 years for these types of claims. In cases of injuries to children, the statute is tolled until the child reaches 18 so that the suit typically can be brought within one year of the child's 18th birthday. A similar tolling statute was clearly in place in New York.

In addition, the damages awards in each bring up interesting points regarding the calculation of damages. An injured person can recover for a host of damages including permanent injuries, pain and suffering, past and future medical damages, and future lost wages. In cases of serious physical injuries such as cerebral palsy and brain injuries, these damages can be enormous due to the future medical care which might include around the clock nursing care. In addition, these injuries bring with them huge potential lost earnings claims. Even at minimum wages, a lifetime of lost earnings can add up to some huge economic damage awards.

These cases illustrate the preposterous nature of all the tort reform debate and the constant thrashing that opportunistic politicians give trial attorneys. Put yourself in the shoes of these two plaintiffs, and their families, and then argue that suits against doctors and hospitals should be stopped to protect the medical profession. The public, injured patients, and the medical profession itself are all harmed when medical negligence is allowed to go unchecked. In addition, without medical malpractice claims, the public, rather than the responsible medical providers, is left to carry the burden of caring for these unfortunate victims of medical malpractice through Medicaid and Medicare.

www.ColllinsAttorneys.com

Construction accidents can be devastating. They are generally far more serious than other workplace injuries. Often times, unlike run of the mill workplace accidents, construction accidents result in permanent injuries and even death.

Workers compensation laws, including those in New Mexico, presumably drafted to protect workers instead generally place a grossly inadequate cap on the amount and types of damages that can be recovered for a workplace accident. The statutes are really for the protection of the employer, not for the employee. Workers compensation statutes protect the employer from any claims of negligence though the cause of workplace accidents is often the result of unsafe work environments, inadequate training, unsafe and unqualified co-workers, dangerous and poorly maintained equipment and a hosts of other preventable causes. In essence, the employer is shielded from any liability for the worker's injuries and damages except in the most extreme cases of recklessness.

In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney's ability to tie liability to the employer's parent company escaping the limitations of the worker's compensation statutes.

Because the deceased plaintiff's estate was barred from suing his employer, the attorney ingeniously argued that the defendant's (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff's death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

The plaintiff's attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

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A settlement of $20 million was reached in March 2009 in the a lawsuit against Burger King for the devastating brain injuries suffered by a 12 year old boy in a 2005 fall from a play structure inside a Burger King facility.

The boy was playing with his 5 year old sister on the play equipment when he fell hitting his head on the tile floor. There was no protective matting below the structure to protect against such injuries. The play structure had monkey bars and a fireman's pole clearing presenting risks of children falling from the structure.

The jury found that the restaurant should have provided some kind of protective covering on the floor rather than the hard tile on which the child fell. In addition, there were no warning signs around the equipment as present in other such facilities. Finally, there had been at least one other fall at the facility showing that the accident and injuries were foreseeable and preventable.

The 12 year old boy suffered severe traumatic brain injury. The injuries are permanent. The child will require a life-time of medical and rehabilitative services. The jury obviously took these permanent injuries and future medical expenses into account in the enormous $20 million verdict.

It is well established under the law of premises liability and negligence that playgrounds must be made safe for children. Parents trust the safety of play equipment every day. The duty to maintain a safe play environment as well as liability and fault for any injuries suffered by the failure to keep this duty lie with the provider of the equipment. This includes restaurants, retail establishments, public playgrounds, and other facilities that offer the use of play equipment to children. In addition to liability for failure to maintain a safe environment for play equipment as was established in this case, manufacturers of play equipment are held to a very high standard of care under products liability law.

If your child is seriously injured in a playground accident, liability for damages may be spread across a number of different parties. It is important to identify all of these the parties from the beginning to avoid possible unexpected apportionment of liability at trial after the statute of limitations has long passed. In case of apportionment of liability to other parties, full recovery for all damages may not be possible if those other parties were not named in the lawsuit.

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Following a $16 million verdict, Ford Motor Company settles with a woman left paralyzed in an auto accident. The settlement came as the jury considered additional punitive damages against the manufacturer for design defects in the rear seat latch on its Explorer model.

The $16 million verdict came despite the fact that the cause of the accident was the driver of another vehicle that struck the Ford Explorer in which Lynn Wheeler was a passenger in the back seat. Ms. Wheeler was sitting in the center of the back seat between her two grandchildren as the family was en route to church on Christmas Day in 2005. Upon collision with the other vehicle, the rear seat latch failed folding on Ms. Wheeler and slamming her forward into the front console.

Ms. Wheeler suffered spinal cord damage and permanent paralysis from the neck down. The Georgia jury awarded a total of $17.7 million in damages. The jury found apportioned the liability and fault between the driver of the other vehicle that caused the accident holding him liable for $1.2 million for his negligence and Ford liable for the remainder on the products liability claim.

The jury was considering additional punitive damages against Ford at the time of the settlement. The punitive damages could have enormous. Punitive damages typically are based in part on the revenue of the defendant. Punitive damages function to deter future conduct. In this case, it appears based upon the evidence presented by the plaintiff's attorney, that Ford had known about the dangers of the lap only seatbelts for more than 30 years based upon extensive crash testing and research. The knowledge was well documented in Ford's own safety documentation and internal memos.

Despite the obvious dangers presented by the defective design, Ford failed to correct the problem continuing to install the lap belts rather than the safer shoulder belts. As a result of Ford's knowledge of the dangers of its defective design and its deliberate failure to correct the problem, it is likely that the jury would have awarded significant punitive damages. Due to the settlement, Ford will avoid a possibly enormous punitive damages award.

Product liability cases such as these are extremely important for the public safety. Consumers trust their safety and the safety of their families to manufacturers such as Ford. Without product liability suits such as this one, manufacturers would have little incentive to design and manufacture safer products. Indeed, as in this case, the motivation flows in the exact opposite direction as manufacturers would ignore their own safety research and findings in an effort to keep production costs down. It is important that the costs savings associated with cutting costs be weighed heavily against the costs of these suits in the event of their deliberate indifference to the safety of their consumers. Unfortunately, profit alone drives manufacturers such as Ford and the threat of lawsuits if nothing else will hopefully drive them toward more responsible design decisions.

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It seems that juries across the country are equally appalled by nursing home abuse and neglect as they are in Albuquerque. An Albuquerque jury recently dinged ResCare, Inc. and ResCare New Mexico for $54 million for nursing home neglect and abuse. Notably, the punitive damages awarded against ResCare approached $50 million.

The ResCare case involved the rape of a severely disabled man by a staff member. The recent case out of Brooklyn involved severe neglect that led to extremely serious bedsores all over the injured patient's body. In addition, after only 9 months in the facility, John Danzy's weight had dropped right at 90 pounds to 147 pounds. Despite transfer to another facility, Mr. Danzy later died as a result of the infections.

It took the jury 2 days of deliberation to reach a verdict of $19 million in total damages against the facility in favor of Mr. Danzy's estate. Much like the ResCare verdict, the bulk of the damages were punitive in nature. The jury awarded $15 million in punitive damages for the facility's cover up of its neglect. The plaintiff was able to establish through expert testimony that the facility had gone back and doctored the file in an attempt to cover up the onset, duration, and aggravation of the bed sores as a result of ongoing medical neglect.

The plaintiff's attorneys believed as did the jury that the nursing home had gone back and altered the records once it was apparent they were facing a lawsuit. The jury sent a message to the nursing home industry, and the medical profession as a whole, that attempted evasion of responsibility for medical or nursing home neglect will not be tolerated. This same message was sent in the ResCare case where the defendant denied responsibility to the bitter end. The case of Mr. Danzy was even more appalling where not only was responsibility denied, the facility actively concealed its medical neglect through the alteration of medical records.

It is interesting that the New Mexico verdict was almost 4 times the New York verdict. It is a good sign for New Mexico nursing home plaintiffs with serious claims of nursing home abuse and neglect. This is particularly so in light of New Mexico's appellate courts reluctance to overturn punitive damage awards, as illustrated in Jolley v. Energen. The court there stated that the punitive damages award would not be overturned unless it was so unrelated to the plaintiff's injuries as to "plainly suggest passion and prejudice over reason and justice." This gives the plaintiff a lot of bargaining room when it comes time for negotiating the settlement during the inevitable appeals that follow such awards in New Mexico.

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