New Mexico Injury Attorney Blog

Accidents are a fact of life. They happen in every aspect of life from home, to the road, to work and every point in between. Sometimes, they result of the negligence of another. Other times, there is nobody to blame. Accidents just happen.

When people get seriously injured, there are all kinds of harms that ensue. In a personal injury action, these are referred to as damages. There are a wide variety of damages that may be recovered in a personal injury lawsuit. Most prominent among these are medical expenses and lost wages, both past and future. However, there are many others depending upon the circumstances of the injured person.

It is perhaps natural when faced with what can be financially crippling injuries to want to hold someone accountable. After all, the medical expenses alone can be overwhelming. These can be enormous and follow an injured person and his or her family for years to come. Other living expenses and obligations continue as well. Life does not stand still when someone is injured.

In those cases where someone else's negligence caused the injuries, there may be light at the end of the tunnel. However, it is important to understand that without liability which typically requires negligence, there simply is no possible recovery. This is very hard to accept when faced with serious personal injuries, but it is the reality.

In fact, New Mexico has a jury instruction that is issued in every personal injury case that directly deals with the issue. The jury instruction, 13-1801, states, "You are not to engage in any discussion of damages unless you have first determined that there is liability..."

This rule and jury instruction is to protect against awards based upon emotional reactions to severe injuries, despite the absence of liability. No matter how bad the damages/injuries may be, there must first be liability to obtain an award.

This means that the jury cannot award damages without first finding liability. This means also that insurance companies are unlikely to settle a claim without a showing of liability. It likewise means that insurance companies will often hotly dispute liability.

Liability typically requires some level of negligence. There are a few exceptions including strict liability claims and no-fault medical payment coverage that are beyond the scope of this article. However, in the great majority of cases, there must be negligence.

In addition, there must be fault or what is termed causation. This means that the negligence actually caused the injury. After all, there might be someone behaving negligently, but that negligence had nothing to do with the accident. There may even be negligence and an accident, but no causation for the injuries. This comes up frequently with the pre-existing injuries.

This is a rather simplistic explanation of establishing liability before getting to damages. However, the point is fairly straightforward which is a person cannot be held liable for something that they did not cause or could not prevent.

In sum, the first challenge in any personal injury clam is to establish liability. This can be a rather complex determination requiring the assistance of an experienced personal injury attorney.

Related Reading:
Sorting Out Responsibility in a New Mexico Premises Liability Claim
Payment of Medical Expense Is Not an Admission of Liability in New Mexico
Possible Premises Liability Even In Cases of Obvious Hazards

Collins & Collins, P.C.
Albuquerque Attorneys

By law, Medicare will claim a lien against any personal injury settlement for medical expenses paid for treatment related to those injuries. In addition, Medicare will claim a lien on future medical expenses related to future treatment for those injuries. The lien on future medical expenses is the Medicare Set-Aside.

It is extremely important to begin working with Medicare on the lien issues well in advance of any settlement. Medicare is often quite reasonable in addressing those liens. This is important for a number of reasons, not the least of which is the fact that Medicare often greatly overstates its liens, often including expenses related to medical conditions unrelated to or which pre-existed the accident.

The same holds true for future medical expenses. Medicare will often assert a blanket lien over the entire settlement amount. In cases where significant future medical expense is required, the future medical expense could actually exceed the amount of the settlement.

This is not that uncommon in cases of very serious injuries where significant and sometimes permanent medical treatment is required. However, there are numerous potential areas for negotiation with Medicare's over inclusive liens. For instance, in cases of serious personal injury, there are often very significant recoverable damages unrelated to medical expenses, either past of future. Medicare is not entitled to claim liens against settlement amounts that are unrelated to medical expenses paid or to be paid by Medicare.

Likewise, in cases involving serious personal injury, the actual settlement is often well below the value of the claim. This comes up in cases of underinsured drivers, underinsured property owners, damages caps in medical malpractice claims, tort claims caps, and so on. In these cases the medical expenses, past and future, may actually exceed the recovery.

In those cases, there are strong arguments that Medicare must take a pro rata reduction in its liens in proportion to the settlement amount and the actual value of the case. It would be patently unfair to allow Medicare to reap the benefits of an injured person's efforts to recover, while simply standing on the sideline awaiting payment in full on its claimed liens.

There will often be other grounds for negotiation of Medicare liens including the future set-asides beyond these two examples. Again, Medicare is often quite reasonable so long as the negotiations occur in advance of the final settlement, and most certainly before distribution of any funds. On the other hand, failure to address them in advance can be disastrous with huge potential fines to the injured person, his or her attorneys and even the insurance company.

In short, though Medicare does have rights to lien a personal injury settlement for set-asides for future medical treatment and expense, there are protections for an injured person. These are equitable in nature and Medicare more often than not will work out a fair and equitable outcome on its liens if properly approached to do so. If they are not approached, then naturally there may be a very different outcome.

If you have suffered personal injuries in an accident and there is a potential settlement, it is very important that you contact an attorney experienced in handling medical liens, including Medicare and Medicaid.

Related Reading:
Eleventh Circuit Addresses Medicare's Responsbilities in Lien Negotiation
Medicare/Medicaid Lien Reduction for Attorney Fees
10th Circuit Addresses Medicaid Lien Reduction in Personal Injury Settlements

Collins & Collins, P.C.
Albuquerque Attorneys

Few recent technological advancements have affected the legal process the way that social media has. Social media is often a gold mine of information on the parties to a lawsuit. Though the issues apply across the board in all litigation, the focus here will be primarily on personal injury claims. More specifically, it will apply to the discovery process in a personal injury case.

To begin, let's start with those folks, surprisingly large in numbers that have yet to recognize the lack of privacy on social media. Amazingly, there are many in the midst of all varieties of litigation that have no privacy settings on their social media accounts. In other words, the world is free to browse around on their account. There is little to be said here since the social media histories may be readily obtainable with or without court involvement.

However, even for those who have set their security settings at their highest, there are still very real risks that those posts will end up in discovery, and if possible, used against them in court. For those that have no privacy settings, it is often possible to get all that is needed or available through informal discovery (i.e. just looking around). For those who think that their posts are protected from prying eyes due to their high privacy settings, they need to think again.

Simply put, for litigation purposes, these posts are public no matter what the privacy settings. There simply is no Facebook-client privilege. Worse yet, the attorney-client privilege can be waived by posting information about discussions with one's attorney. No kidding, it happens! So even though the posts are private (i.e. shared only with your closets 1000 friends), the information may be obtained through the discovery process during litigation. This means that the court can order you to turn over this information.

The Courts have taken various positions on the discoverability of this information. There have been cases where judges have simply required parties to turn over their passwords to their accounts (including Facebook) to the other side. This is the most extreme position since it has the potential of revealing very embarrassing but irrelevant information to the other side.

Other courts have required a party to provide archives from their social media accounts. Though this might seem somewhat less invasive since passwords are not turned over, it is no less intrusive and no less prone to abuse by hostile opposition parties.

Other more thoughtful judges have instead requested the information for in camera review. This means that the judge review the information in order to determine the scope of the discoverability limiting the information to that which is relevant to the case. This same objective might be achieved through the appointment of a Special Master that works to manage and supervise the discovery process.

There are numerous variations on these approaches. Moreover, discovery in the age of social media will continues to evolve quite rapidly. However, there is one thing that should be kept in mind and that is that no matter how the courts evolve on this issue, your social media to a large degree will be discoverable.

The rule on discovery is "relevance" not admissibility. Relevance allows discovery of anything that might lead to admissible evidence and this is a very broad swath across your social media universe. The evidence revealed on social media need not be admissible itself. It just has to be relevant and relevance is a fairly broad concept. Moreover, the rules of discovery dictate that courts err on the side of discoverability.

In a nutshell, whatever you post can and will be used against you! So think before you post. Once posted, it is too late. Social media is permanent. And attempts to delete or hide it give rise to all kinds of other problems (think sanctions, adverse inferences, contempt...).

If you find yourself in this situation and you have a personal injury claim, it is important to speak with an experienced personal injury attorney before taking any rash and potentially irreversibly harmful action on your own.

Related Reading:
Social Media Puts Courts Behind Technology
Growing Perils of Social Media - Your Insurer is Watching!
Divorce & Social Media - A Toxic Mix

Collins & Collins, P.C.
Attorneys at Law

Medication errors are a serious problem, and many of them involve preventable drug interactions. The Academy of Managed Care Pharmacy (AMCP) describes a specific preventable error as one that is "due to the lack of both adequate documentation and drug utilization review." In other words, physicians and pharmacists should be taking a close look at the drugs that patients are currently using to determine whether a dangerous drug combination might occur. If they don't, their failure to properly screen and monitor for harmful interactions could constitute medical malpractice exposing them to liability for the injuries and damages that result to the patient.

What is a Drug Interaction?

The Federal Drug Administration (FDA) defines a drug interaction as one of the following: an occurrence that can make other drugs less effective, can cause unexpected side effects, or can increase the action of a specific drug. The FDA explains that there are three kinds of drug interactions.

• Drug-Drug interactions happen when two or more drugs react with one another to cause an unexpected side effect. These interactions can occur with two prescription medications, over-the-counter and illegal drugs, or a mix of the two. For example, the FDA explains that taking a sedative with an antihistamine can cause a drug combination that leads to delayed motor responses. One recently growing proble is the issue of dangerous inteactions between other drugs (specificially opiates) and alcohol.


• Drug-Food/Beverage interactions happen when drugs react with food or beverages. For example, the FDA says that taking alcohol with certain drugs can dramatically slow your reaction time.


• Drug-Condition interactions happen when you have an existing medical condition that makes "certain drugs potentially harmful." For example, having high blood pressure can make certain medications very dangerous to you (and these are drugs that wouldn't otherwise be harmful to someone without high blood pressure).

Screening and Monitoring to Prevent Harmful Drug Combinations

One important method that health care professionals can use to monitor patients' potential drug interactions is an electronic health record (EHR) system. These systems do exactly what they sound like--they maintain a database for each patient's health record, and they perform other internal functions, too. According to HealthI, these systems can "track medication use, identify drug interactions, and provide better healthcare to patients."

Who uses these EHR systems? The American College of Physicians (ACP) explains that there are a number of types of EHR systems that medical facilities can choose from. Most importantly though, the ACP makes clear that the government is working to make sure that all health care providers are using EHR systems. In fact, "the government has imposed incentives and deadlines to implement EHR systems or face penalties." These incentives are available to medical professionals who "adopt, implement, upgrade or demonstrate meaningful use of certified EHR technology," according to the Centers for Medicare and Medicaid Services.

What are the Patient's Responsbilities?

According to the AMCP, healthcare professionals have a duty to make sure they've provided their patients with adequate education about potential drug interactions and warnings associated with certain prescriptions.

At the same time, some of the onus to prevent dangerous drug combinations is on the patient. When they're prescribed a medication, patients must be honest with their physicians and pharmacists about other drugs they're currently using to avoid harmful interactions. The AMCP explains that patients can act as "the final check system." In addition to being informed about potential drug interactions (and informing their health care providers), patients can also carry an up-to-date list of medications with them in case of an emergency.

But of course, errors still occur. In cases where medical professionals fail to monitor or to otherwise prevent a harmful drug interaction, they can be held accountable for this negligence. The Clinical Manual of Drug Interaction Principles for Medical Practice makes clear that physicians are responsible for a "failure to monitor drug levels with medications known to exhibit considerable drug-drug or drug-dietary interactions." And in some cases, even nurses and pharmacists have been named as co-defendants in medical malpractice claims.

Do Not Delay!

If you or a loved one have been harmed as a result of a drug interaction and you believe medical negligence is to blame, it is important to contact a medical malpractice attorney right away. There are important and strict deadlines in medical malpractice claims that when missed will bar your claims completely.

Related Reading:
Failure of Medical Provider to Properly Screen for Medications
Growing Dangers of Prescription Drug Abuse
Hospital Medication Errors More Common Than One Might Think

Collins & Collins, P.C.
Albuquerque Attorneys

Parrish Collins
Collins & Collins, P.C.
Phone: (505) 242-5958
Fax: (505) 242-5968

"Never Events" are a specific set of incidents that occur in a medical setting as a result of preventable errors or substandard care. These specific incidents are named in reference to the fact that they almost by definition the result of medical negligence. Following proper procedures, standards and protocols can eliminate them entirely.

Unfortunately, even though there is widespread acknowledgement that these mistakes should never occur, many investigations have found that these "never events" occur thousands of times each year.

Responding to the challenge of preventing never events, the American Association of Critical-Care Nurses (AACN) has developed "Practice Alerts" that provide evidence-based guidelines designed to sharply reduce specific never events. These Practice Alerts are best practices that should be implemented in the clinical setting to protect patients. The AACN also notes that, by protecting patients, nurses also will be protected from the trauma that may result from being involved in an avoidable medical error.

For example, following proper standards can prevent the never event known as ventilator-associated pneumonia (VAP). VAP refers to a lung infection which develops in a patient who is using a ventilator. This usually occurs when the tube used becomes infected with germs that enter the patient's lungs.

Ventilator-associated pneumonia is deadly, resulting in death in 20-40% of cases. For each 1000 ventilator days, there are between 10 and 35 VAP cases. The ACCN Practice Alert for ventilator-associated pneumonia identifies three key steps that critical care nurses should follow to prevent VAP. Each of these are supported by multiple clinical studies in a variety of patient populations and settings:

• Elevate the head of the bed by 30-45 degree. This simple, no-cost technique can make a dramatic difference in gastric reflux as well as VAP. Yet studies and literature show there is poor compliance with this recommendation.


• Use an endotracheal tube so that secretions can be continuously drained.


• Change ventilator circuits routinely based on duration of use.

The ACCN has also issued a Practice Alert for Oral Care in critically ill patients to prevent VAP. The goal is to prevent infections by improving oral care in patients at high risk of VAP by:

• Brushing teeth, gums, and tongue at least twice daily with a soft toothbrush.


• Providing oral moisture to the mouth and lips every two to four hours.


• Using a medical rinse twice daily during hospitalization, from admission to discharge.

It is always critical to have an individual assessment of situations where medical malpractice might have occurred leading to serious injury or wrongful death of a patient. However, when a never event occurs, like ventilator-associated pneumonia, there is a very significant chance that medical negligence was the cause. Failure to follow these clinical guidelines is likely evidence of malpractice.

Due to the many challenges and unique and critical deadlines associated with medical malpractice claims, where there is suspected medical negligence that has caused serious personal injury or wrongful death, it is important to contact an attorney experienced in medical malpractice claims as soon as possible.

Related Reading:
Misplaced Feeding Tubes - A "Never Event" in Medical Treatment
Hospital Medication Errors More Common Than One Might Think
Patient Advice of Risks and Consent Will Not Bar New Mexico Medical Malpractice Claims

Collins & Collins, P.C.
Albuquerque Attorneys

Medication errors occur more often than most of us would like to imagine, and many of them are preventable. In many cases, physicians and other health care professionals who closely monitor patients' medications can help to prevent those errors by ensuring that harmful drug interactions don't occur.

The term "drug interactions" can refer to many different types of interactions. These include:

• Drug-drug interactions, which occur when two or more drugs interact and cause unexpected side effects

• Drug-food/beverage interactions, which occur when drugs interact negatively with food or beverages

• Drug-condition interactions, which occur when a drug interacts negatively with an underlying health condition

Perhaps more significant than monitoring patients to prevent these harmful drug interactions, health care professionals can ensure that adverse drug reactions don't occur by screening patients for medications prior to prescribing additional medications.

If physicians and other health care professionals fail to screen patients for potential drug interactions, they could be liable for any damages sustained as a result. Sadly, it is not uncommon that these dangerous drug interactions lead to very serious injury or death.

What Does Proper Drug Screening Entail?

Proper drug screening is dependent on the circumstances and the patient. There may be issues and circumstances suggesting higher levels of drug screening. At a minimum, drug screening requires proper intake questionnaires and protocols to identify possible drug interaction risks.

Screening can range from a urine test or other drug abuse screening to a physician's/medical provider's duty to conduct an accurate medical history report for the patient. In certain patients, where the issue is clearly present or should be apparent, a drug abuse screening should be conducted for the detection of the presence of harmful drugs that could lead to harmful interactions with other prescription medications. One such situation is the growing issue of the dangerous interactions between benzodiazepines and opiates, alcohol or other drugs.

For example, the University of Iowa Health Care System provides a manual for its laboratory pathology department that explains how drug abuse screenings can prevent dangerous drug interactions. These screenings should test for the presence of amphetamines, benzodiazepines, cocaine, opiates, and oxycodone among others.

These tests can be very valuable because they can alert health care professionals to a number of drug abuse or misuse dangers including off-label use occurs. Off-label use refers to the use of prescription drugs in ways that haven't been approved by the Federal Drug Administration (FDA). These screenings can also detect illegal use of many of these prescription drugs.

It's important to know what drugs a patient is using. The concurrent use of opiates and benzodiazepines can have very serious and sometimes fatal consequences. Likewise, benzo use and alcohol is very dangerous. What this means at a minimum is that benzos should not be prescribed to a known alcoholic or opiate addict.

In addition to drug abuse screening, physicians should also be careful when constructing patients' medical history records. A report from the National Institute of Health indicates that there is typically a 20 percent error rate in patients' medical records. This means that future monitoring of patients' health and medical records, no matter how precise and thorough, can't prevent all errors. In this case, the careful construction of a patient medical record from the beginning of a physician-patient relationship is extremely important.

Careful screening can prevent a health care professional from unknowingly prescribing medications with known drug interactions. There are many such dangerous interactions and medical providers should be aware them and take necessary precautions to prevent them. The failure to do so with resulting serious injury or death to a patient may well constitute medical malpractice.

Related Reading:
The Many Dangers of Benzodiazepines
Hospital Medication Errors More Common Than One Might Think
Growing Dangers of Prescription Drug Abuse

Collins & Collins, P.C.
Albuquerque Attorneys

If you are ever in an auto accident, you will soon receive a call from an insurance adjuster. That adjuster will be calling on behalf of the other party's insurance company. The adjuster will ask and sometimes insist that you give a recorded statement regarding the accident.

To get immediately to the point, despite the suggestion by the adjuster to the contrary, a recorded statement is voluntary. You do not have to give one. This leads to point number 2:

What is a recorded statement in an auto accident case? It's a statement to an insurance adjuster in which you give facts about how the accident happened, as well as some personal information about yourself.

Keep in mind that anything you say to the insurance adjuster can later be used against you. The reason you do not give a recorded statement is not because you have anything to hide. It is because the question can be confusing, the adjuster is a professional (and has done this many times before and you have not), the adjuster has no interest in protecting your rights and the adjuster's job is to keep the payments by the insurer to a minimum.

In most cases, there simply is no reason to give a recorded statement. There are exceptions where it might be advisable depending on the case, the insurance company, the particular adjuster and other circumstances. But only an experienced attorney will be able to advise you on when the recorded statement may be to your advantage.

There are a couple of key points to keep in mind when asked for a recorded statement. Never even consider giving a recorded statement until you first speak to an attorney. Until your attorney has advised you otherwise, politely turn down the insurance company's request for the recorded statement. Since your statement can be used against you, you don't want to answer any questions on tape. Your responses can be misconstrued if the adjuster's question is unclear or open-ended.

The recorded statement is voluntary. Don't let the insurance adjuster convince you otherwise. In some cases, an insurance contract can contain a "cooperation clause." This is a provision in an insurance policy that can compel the "insured to assist the insurer in defending claims under that policy." It does not apply to the other party (i.e. you). And even under a cooperation clause for the at-fault driver, a recorded statement remains voluntary. Do not let the insurance adjuster suggest otherwise in order to induce your recorded statement. The adjuster has no duty to you and therefore has no duty to inform you of your rights. And you cannot later complain that you did not understand your right to refuse the recorded statement.

In sum, the insurance adjuster is not your friend no matter how nice or concerned he or she seems. The recorded statement is not for your benefit or protection no matter what may be suggested to the contrary. Anything you say can and will be used against you later. This may sound familiar but there are no Miranda rights in these cases and the adjuster has no duty to protect your interest, his duty is to his insured.

So again, DO NOT GIVE A RECORDED STATEMENT!

Related Reading:
Task Number 1 in an Auto Accident - Prove the Fault of the Other Driver!
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Albuquerque Attorneys

Benzodiazepines (often referred to simply as benzos) fall into the category of central nervous system depressants. They're typically used to treat anxiety and sleep disorders, but they can also be prescribed as sedatives and as anticonvulsants (to treat epilepsy), and as muscle relaxants. You've probably heard of some of the brand-name benzodiazepines. They include: Ativan (lorazepam), Klonopin (clonazepam), Xanax (alprazolam), and Valium (diazepam).

They're typically used to treat anxiety and sleep disorders, but they can also be prescribed as sedatives and as anticonvulsants (to treat epilepsy), and as muscle relaxants. Sometimes they are prescribed for off label uses. They are often abused. They are often used in dangerous combinations with alcohol or other drugs. They can be quite dangerous even when used as authorized by prescription. When abused or taken in unsafe manners, they are extremely dangerous.

The Controversial History of Benzodiazepines

In recent years, researchers have been cataloguing the dangers of benzodiazepines. One study reported in Psychology Today described efforts to get feedback from benzodiazepine users in America and Britain. This report came just after a 2010 warning from the Medical Research Council that Valium and Xanax can cause permanent brain damage. Surprisingly, this warning actually dates back to the 1970s, when the rise of benzodiazepine prescriptions began.

Have researchers known about links between brain damage and benzodiazepines for almost forty years? Beginning in the 1970s, "vast numbers of people" started taking benzodiazepines to treat stress and anxiety. Even at this time, certain physicians and researchers worried about the dangers of these drugs. In 1975, a physician from the University of Tennessee indicated that benzodiazepines might be responsible for memory loss, saying, "I am very convinced that Valium, Librium, and other drugs of that class cause damage to the brain . . . and I am beginning to wonder if that damage is permanent." Others echoed this finding, while also raising concerns about the addictive quality of the drugs along with other dangers.

Nonetheless, benzodiazepines were very popular for that decade and into the 1980s, until the use of "benzos," as they're called for short, waned in popularity with the rise of selective serotonin reuptake inhibitor (SSRI) antidepressants.

From the 1980s and into the 1990s, SSRI antidepressants such as Prozac, Zoloft, and Paxil gain prominence. During this time, several studies noted the dangers of benzodiazepines in comparison to the SSRI antidepressants, "including pronounced behavioral abnormalities and a serious risk of addiction." Despite these findings, the drug class had resurgence in the early 2000s.

Known Dangers of Benzodiazepines

As benzodiazepines gained renewed popularity in America and in the U.K. in the 2000s, researchers voiced continued concern about the drugs in relation to addiction. In a 2002 Discovery Channel documentary, a researcher from the London Institute of Psychiatry explained that, while physicians had a pretty good idea in the 1970s that benzodiazepines posed a danger of addiction, they didn't have sufficient findings to curb the drug's use.

At that time, they had assumed that "only addictive personalities could become dependent, and that true addiction was unusual." However, by the early 2000s, it was clear that "even people taking therapeutic doses" of benzodiazepines were at risk for addiction. With rising levels of addiction, other dangers became clear. Most notably, it is clear now that withdrawal from benzo use is highly dangerous, even more so that opiates such as heroin.

In addition, benzos pose a serious risk of overdose. Overdose can occur even with prescribed use. The risks of overdose increase dramatically when used in combination with alcohol or other drugs such as opiates. Unfortunately, this is far too common and often leads to severe injuries or death.

Possible Medical Negligence

The issue of medical negligence associated with benzo use most commonly come up in the context of withdrawal and overdose. In the case of withdrawal, a medical provider that fails to properly account for the dangers of withdrawal from benzos with resulting serious injury or death is almost by definition guilty of medical malpractice.

The same would hold true for doctors that prescribe benzos to patients known (or who the medical provider should have known) were likely to use the drugs in combination with alcohol or other dangerous drug combinations. Remarkably, there are mental health professionals who prescribe benzos knowing full well that their patient has alcohol and/or drug addiction issues. In fact, it may be that the patient is being treated for those very issues when he or she is prescribed benzos. Without proper precautions to protect the patient, this is inexcusable.

If you or a loved one has suffered serious injury or wrongful death in one of these contexts, then it is important to contact an experienced personal injury attorney right away.

Related Reading:
Criminal Penalties for Off-Label Drug Marketing: Will They Make a Difference?
Hospital Medication Errors More Common Than One Might Think
Growing Dangers of Prescription Drug Abuse

Collins & Collins, P.C.
Albuquerque Attorneys

If you are in a car accident, insurance coverage is critical to recovery on your claims. It is important to understand insurance coverage issues. One such is issue is the availability of stacking of coverage.

To begin, insurance coverage issues generally and dealing with insurance companies more specifically can be complicated and challenging. As such, if you have suffered serious personal injuries in an auto accident, you should consult with an experience personal injury attorney right away to insure that your rights are fully protected.

First, it is important to understand what "stacking" of coverage means. Stacking means that you can combine uninsured/underinsured motorist coverage on your various insured automobiles so that your total available coverage is the combined coverage of all policies. In other words, stacking allows you to add the individual policy limits together to get higher available coverage limits.

For example, if you have 2 cars that are each insured at $25,000, then you would have a total of $50,000 in uninsured/underinsured motorist coverage available. The same would hold true of if you had 3, 4, 5 ... cars. In addition, stacking might allow you to stack policies for other motor vehicles such as trucks and motorcycles. It might even include ATV's.

As you can see, stacking of coverage can result in significant increases to available coverage in the case of an accident as multiple policies can add up quickly. However, stacking is only allowed on some types of coverage. Specifically, in New Mexico, stacking is allowed only on uninsured and underinsured insurance coverage. It is not allowed on liability coverage. Nor is it allowed on medical payment coverage or other coverage.

Many states do not allow stacking at all, even on uninsured and underinsured coverage. Stacking of uninsured and underinsured coverage in our State is very important since New Mexico has a very high rate of uninsured drivers and even higher rate of underinsured drivers. The fact is that if you are in accident in New Mexico, there is a very good chance that the other driver will either be completely uninsured or grossly underinsured in cases of serious personal injury or wrongful death.

For a little perspective, New Mexico is always near the top for uninsured motorists. For those that do have insurance, the minimum liability limits are only $25,000. This means that without uninsured/underinsured coverage and lots of it, you will not come close to being fully compensated for your injuries. Unfortunately, many innocent drivers will also hold minimal limits of $25,000 which means stacking is critically important for any meaningful recovery.

For those that are reading this and it is not too late, get as much uninsured/underinsured coverage as you can. Get it on all your vehicles so you will have the benefit of stacking. It is not only the essential to recovery, you may find it is one of the few good deals in insurance.

Related Reading:
New Mexico Laws on Rejection of Uninsured/Underinsured Motorist Coverage are Retroactive
Don't Get Lured Into Waiver of Uninsured/Underinsured Motorist Coverage
Stacking Uninsured/Underinsured Motorist Coverage in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

"Never Events" are adverse medical incidents which are by definition caused by medical negligence. Included among these are misplaced feeding tubes. It is important for patients and their families to understand that when they are seriously injured by one of these never events, they likely have a medical malpractice claim against the medical provider(s).

There are many challenges to medical malpractice claims. There are also unique and critical deadlines on medical malpractice claims. As such, if you or a loved one has suffered serious personal injury or wrongful death as a result of one these events, it is important to contact a medical malpractice attorney right away.

Many different patient advocacy groups have sprung up in recent years to address the persistent problem of never events. For example, the American Association of Critical-Care Nurses (AACN) compiled a list of guidelines based on a wide-range of available evidence to help guide medical care professionals in eliminating these errors. Quite simply, these guidelines, known as "Practice Alerts," represent steps that should be followed 100% of the time in order to keep patients safe.

Consider one of the most common types of never events: misplaced feeding tubes. Many patients need to receive nutrients into their stomach via these tubes. For instance, some patients such as those with cancer or anyone having problems affecting the throat or mouth might requiring a feeding tube. When not inserted correctly, these tubes can cause serious problems.

When nurses are negligent in inserting the tube it may feed nutrients directly into the bloodstream. At other times the tube incorrectly may send material to the lungs, potentially leading to pneumonia. Tubes can also perforate the gastric system or even dislodge, causing leakage that leads to asphyxiation.

The problems arise much more frequently than is acceptable considering the rather routine nature of these procedures. One study reviewed more than 2,000 feeding tube insertions and found misplacements in 1.3 to 3.2 % of the insertions, and 28% of those misplacement resulted in pneumonia or pneumothorax.

Feeding tube errors can be prevented with adherence to proper safety protocols outlined by the AACN. The ACCN has issued a Practice Alert for verification of feeding tube placement. The Practice Alert prescribes a variety of bedside methods to be followed, such as observing for signs of respiratory distress. It also requires obtaining an x-ray to confirm that the tube was correctly placed before it is used. The guidelines calls for checking tube location every 4 hours after feedings begin.

Additionally, the Practice Alerts provide for staff training so that nurses and other professional staff follow the practices identified in the alerts consistently. The evidence shows that inter-professional teams, including nurses, doctors, and other professionals, are most effective in implementing the alerts. Hospitals and their administrators need to understand the importance of this training to keep patients safe.

Again, if you or a loved one has been negatively affected by a hospital-acquired health care problem, such as a misplaced feeding tube, you should contact an attorney right away for a review of your case. When a never event occurs, almost by definition, medical negligence will be to blame.

Related Reading:
Are Guns Safer than Hospitals?
Simple Surgical Checklist Can Save Patient Lives!
Hospital Medication Errors More Common Than One Might Think

Collins & Collins, P.C.
Albuquerque Attorneys

According to the White House's Office of National Drug Control Policy (ONDCP), prescription drug abuse has become an epidemic in America.

What is prescription drug abuse? The National Institute on Drug Abuse defines prescription drug abuse as "the use of a medication without a prescription, in a way other than prescribed, or for the experience or feelings elicited."

While the Centers for Disease Control (CDC) has noted an increase in the use of some illegal drugs such as cocaine, the majority of first-time drug users actually begin "by using a prescription drug non-medically." In fact, statistics show that treatment admissions, emergency room visits, and overdose deaths related to prescription painkillers have increased steadily across the past decade surpassing that of illegal drugs.

Who is Most Susceptible to Prescription Drug Abuse?

Specific data from the National Survey on Drug Use and Health (NSDUH) shows that teens are particularly susceptible to prescription drug abuse. They tend to believe that prescriptions drugs are safer to use than "illicit drugs," such as marijuana or cocaine, since they've been "prescribed by a healthcare professional" and "dispensed by a pharmacist."

But teens aren't the only ones who begin abusing prescription drugs. Older adults who take prescription drugs to relieve chronic pain can also abuse these substances. Frequently, these users never intended to become addicted to prescription painkillers, but after years of use, it can be hard to stop.

This "largely unrecognized epidemic" leads to more than 26,000 fatal overdoses per year, according to a report from the CDC. In fact, Robert DuPont, the former director of the National Institute on Drug Abuse, described prescription drug abuse as "the biggest and fastest-growing part of America's drug problem." While illegal narcotics such as heroin and cocaine used to have the highest rates of overdose and death, the fatalities associated with prescription painkillers have exceeded those of both heroin and cocaine.

What Kinds of Drugs Are Most Commonly Abused?

The National Institute on Drug Abuse, which seeks to provide "the science of drug abuse and addiction," provides a fact sheet for some of the most commonly abused prescription drugs. These include:

• Opioids, which are typically prescribed to treat pain


• Central nervous system depressant, typically used for treating anxiety and sleep disorders


• Stimulants, most often used to treat attention deficit hyperactivity disorder (ADHD)

Is Medical Negligence to Blame?

Many experts blame the rise in prescription drug abuse on medical professionals and pharmaceutical sales. According to the chair of anesthesiology at the University of North Carolina Hospital, there are ample supplies of prescription drugs available, and "they're relatively easy to get."

An addiction specialist at the same hospital indicated that physicians are more willing to prescribe the prescription painkillers described above than they were in previous decades. The same appears to hold true for the over-prescription of ADHD drugs.

There can be a fine line between legitimate and responsible prescription of medications to patients for pain, ADHD, sleep disorders and the like. However, there are some practices that are simply unacceptable and dangerous.

It will not always be easy to tell the difference. After all, doctors cannot be held responsible for every negligent or reckless act of their patients. On the other hand, when these propensities for abuse are or should be obvious to the doctor, then failure to take appropriate precautions to protect the patient is unacceptable and may give rise to a medical malpractice claim.

Do Not Delay!

If you or a loved one has been harmed by prescription drug abuse, it is important to speak to an attorney right away to help determine if medical negligence was to blame. Keep in mind that there are strict deadlines associated with medical malpractice claims. Missing a deadline will bar your claims completely.

Related Reading:
The High Costs of Medical Errors on the Healthcare System
Hospital Medication Errors More Common Than One Might Think
Medical Malpractice Claims Raise Unique Statute of Limitations Issues

Collins & Collins, P.C.
Albuquerque Attorneys

Recently, in Weiss v. THI of New Mexico at Valle Norte, the New Mexico Court of Appeals looked into whether an arbitration clause in a nursing home resident contract can be used to avoid monetary sanctions awarded by the court in a pending nursing home abuse and neglect lawsuit.

In this case, the plaintiff's estate filed a wrongful death lawsuit against the defendant for nursing home neglect. After filing the lawsuit, the plaintiff began filing discovery requests. Discovery in a personal injury lawsuit is the method where each party is able to request information from the opposing party. It typically takes the form of interrogatories (which are written questions that require an answer under oath), requests for documents and depositions (where a witness answers verbal questions under oath). Here, the defendant produced some of the discovery requested by the plaintiff, but then began asking for several extensions and failed to produce any additional requested documents.

When the defendant refused to produce the discovery requested by the plaintiff, the plaintiff then filed a motion to compel discovery. A motion to compel is essentially a motion asking the court to require the other party to provide the requested discovery or pay monetary sanctions. In this case, the parties argued the motion to compel and the judge ordered the defendant to produce the discovery requested by the plaintiff.

Around the same time the judge ordered the discovery production, the defendant also discovered that the deceased nursing home resident's admission agreement included a clause requiring any disputes be settled through arbitration. As a result, the defendant filed a motion to compel arbitration and end the traditional lawsuit. After filing the motion to compel arbitration, the defendant also chose not to produce the discovery ordered by the judge.

When the defendant still did not produce the requested discovery, the plaintiff filed a motion for discovery sanctions, essentially asking the judge to impose a monetary penalty upon the defendant for failing to abide by the judge's order. The judge then denied the defendant's motion to compel arbitration, granted the plaintiff's motion for sanctions, imposed a $25,000 fine on the defendant and again ordered the defendant to produce the requested discovery.

The defendant appealed the judge's rulings. They argued that their motion to compel arbitration should have immediately stopped any obligation they had in the traditional lawsuit. New Mexico law provides that when a court receives a motion to compel arbitration, it should "on just terms" stay the traditional lawsuit until it can make a decision about whether arbitration is required. In other words, the traditional lawsuit does not automatically pause with the filing of a motion to compel arbitration, rather the court is simply required to assess whether the claim is subject to arbitration.

The Court of Appeals determined that the trial court had discretion as to whether it should stay the lawsuit while determining the issue of the arbitration clause. As a result, the defendant had no right to continue withholding the discovery, particularly after they were ordered to produce it by order of the judge. Without proper justification for failing to produce the discovery, the $25,000 fine imposed by the judge was also proper and right.

Related Reading:
Nursing Home Arbitration Provisions Must Not be "Unfairly" One-Sided in New Mexico
Discovery in a Personal Injury Lawsuit: Often Difficult and Expensive but Always Necessary!
Nursing Homes' Patient Records Often Neglected and Occasionally Deliberately Falsified

Collins & Collins, P.C.
Albuquerque Attorneys

Social media has created all kinds of new challenges and opportunities in litigation. It also creates a number of possible avenues for abuse. In nutshell, the courts are having a hard time keeping up with social media technology. Some issues are old in today's terms (a few years). One interesting issue than will have far reaching implications in litigation involves service of process issues.

Let's start with the "old" issues. One issue that has come back to bite many unwary social media enthusiast is the discoverability of social media accounts. Discovery in litigation is basically the collection of documents and records from the other side during the litigation process. The courts have had a hard time circumscribing allowable discovery of social media.

For those on both sides of the equation, there are many hazards. First, those snowboarding vacation photos do little to bolster your personal injury claims for a hurt back. Insurance companies are certainly on the lookout for such evidence. Surprisingly, many people even in the midst of litigation leave their social media accounts visible to all. Many more post the most inadvisable content. More than just goofy pictures, some will information about their case risking attorney client privilege.

It is also quite hazardous for those seeking to clean up their social media mishaps. In fact, litigants on both sides have faced severe sanctions for missteps. There are the normal sanctions for failure to turn over requested discovery. There are sanctions for destruction/spoliation of evidence by the deletion of accounts. Litigants have been sanctioned and lawyers have been disbarred for counseling it. Most severe are potential obstruction of justice charges in criminal cases for intentional destruction of evidence.

On the flip side, lawyers have been severely reprimanded for posing as a friend in order to gain access. This would include having investigators or the attorney's staff do the same. This constitutes very serious ethical violations for misrepresentation of identity. When the person has an attorney, it is considered unauthorized and unethical communication with a legally represented party.

This is all relatively old news. One fairly important wrinkle that has come up with social media is the legality of service of process via Facebook. A recent New York case involved a lawsuit by the FTC against a number of defendants in India. The facts are rather unique in that the defendants had been served by a variety of methods, acknowledged the lawsuit and hired an attorney to who entered an appearance on their behalf in the federal lawsuit. The subsequent service was for service of motions for violation of temporary injunctions issued by the court.

Though the facts of this case seem somewhat restrictive, the court set forth criteria for sufficiency of service via Facebook and/or email which would seem to allow broader application to service by Facebook, email and/or other social media.

The basic requirements of service is to put the defendant on notice of the suit. It has been suggested that the ruling leaves open the possibility of a fairly minimal showing of reliability of notice through these various media. According to some, It may be that it need only be shown that the defendant owns the account and is active on the account to meet the required indicia of reliability of notice of the lawsuit. It takes little imagination to come up with all manner of disputes over the each of these elements.

This like all the other social media issues will open a host of potential abuses by overzealous parties, attorneys, investigators and the like. It will also put the courts once again behind the technology curve as they try to define the scope of allowable service of process through social media. Unfortunately, this article does not come close to addressing all the potential technological issues and possible abuses. The courts will be left to that task.

Related Reading:
Growing Perils of Social Media - Your Insurer is Watching!
Outside Jury Influence Difficult Challenge with Rise of Mobile Technology and Social Media
Post at Your Own Risk! Social Media Discoverable in Litigation

Collins & Collins, P.C.
Albuquerque Attorneys

A New Mexico news story has been getting a lot of press of late. A man convicted in 2010 of vehicular homicide for a DWI fatality has now filed suit against the bars and restaurants that served him. The man has also filed suit against his drinking buddy on the night of the fatal DWI accident.

As evidenced by all the press the story is getting, this obviously does not sit well with the public and will likely lead to a chorus of protests. Cases like this are easy fodder for tort reform advocates who argue that there is rampant frivolous lawsuit abuse. However, it is a little early to draw any such conclusions from the filing of this case.

In fact, there are a number of precedents set by both the New Mexico civil and criminal courts that lend some credence to the suit. Let's start with the suit against the buddy. Then we can move on to the claims against the bars and restaurants that served the man.

Passenger Criminal Liability for DWI Accidents

It was established in the 2009 New Mexico Court of Appeals case of State v. Marquez that a passenger could be charged with vehicular homicide. That case was pretty remarkable on the facts. The two friends had gone on quite a bender being cut off at several bars whereupon they took their show to the roads purchasing alcohol at several retail outlets along the way. Tragically, in the end, 2 people were killed and 5 injured in a devastating DWI auto accident. With this precedent in place, why would there not be civil liability as well? After all, the standard for civil liability is much less stringent than for a criminal conviction.

Certainly, the person killed would have a claim potentially against those that served the man as well as his buddy. It is not a stretch to get to civil liability for the consequences to the driver no matter how repugnant this may on a gut level. The facts remain to be seen about the buddy's role in the accident and the drinking that led up to it. Once this is heard, and it should be heard, it may well be that the drinking buddy bears responsibility to both the innocent victims and his drunk driving friend.

Dram Shop Liability for the Bars & Restaurants

Civil liability for a drinking buddy to a DWI friend has as far as I can tell yet to go before the higher courts of New Mexico. The liability for the bars and restaurants to the DWI driver/patron has been addressed by the New Mexico Supreme Court in the 2011 case of Mendoza v. Tamaya.

That case involved a suit by estates of two patrons of a resort who were killed in a DWI accident following a wedding reception. The Court in that case clearly established that the estates of the deceased patrons, including the driver, could sue for negligent over-service of alcohol. Therefore, it is clear that the DWI offender could sue for his own physical injuries and wrongful death under a dram shop patron claim.

If that is the case, why should the same patron be prevented from filing suit for other damages for that same negligent over-service of alcohol, namely 42 years in prison in the case at hand? The fact is that there is appears to be no good legal basis for that position.

Liability is Possible Though Perhaps Not in This Particular Case

The facts in State v. Marquez and Mendoza v. Tamaya both involved exceptional facts. Perhaps, the facts of the most recently publicized case will not meet those same standards. Perhaps this is not the case that will establish liability for the DWI driver's own damages under the patron dram shop claim or a DWI buddy claim. But it does not take a great deal of imagination to envision a situation where such liability on both counts would be perfectly in order.

In light of the countless tragic DWI accidents, the outcome of this case could prove to be one more useful tool for fighting DWI in New Mexico. This is one possibility that does not seem to have been addressed yet by the press.

Related Reading:
Drunk Driving Auto Accidents: Scope of Passenger Liability in New Mexico
New Mexico Supreme Court Limits Tribal Sovereign Immunity in Casino Dram Shop Cases

Collins & Collins, P.C.
Albuquerque Attorneys

Many of us have loved ones in nursing homes. In addition to providing daily care, these facilities administer many different medications to their patients. Medication administration is a little different in nursing homes than in other settings since these facilities deal with live-in residents. In many ways, this makes it easier to ensure that patients aren't subjected to medication problems, but medication errors occur nonetheless.

Often, these mistakes pertain to inadequacies in medication monitoring, and according to the Medication Error Quality Initiative (MEQI), they're often preventable. When preventable medication errors do occur and a loved one suffers serious personal injuries or wrongful death, you should consult with an attorney to determine if you have a possible claim for nursing home negligence and/or medical malpractice.

How Do Medication Errors Affect Nursing Home Patients?

According to the MEQI, most of the errors that occur in nursing homes fall into two "less serious categories." In many cases, the medication errors did not reach the patient--in other words, the patient never took the medication. In other cases, the medication error did not harm the patient--in other words, the patient took the medication, but the error was not significant enough to cause an injury. In most nursing home cases, these two types of errors typically account for more than 90% of all medication mistakes.

However, some medication errors can cause serious injuries and even death, and it's important to know what leads to these kinds of mistakes.

What Causes These Errors?

For the majority of medication errors, the MEQI attributes them to human factors. These include basic human error, simple mistakes, forgetting, overlooking orders, carelessness, and lack of oversight. In these situations, the medication errors were preventable.

Similar to a hospital setting, a nursing home has medical personnel in various departments. These include physicians, nurses, pharmacists, and pharmacy technicians. In nursing homes, errors across these areas deal primarily with dose omission. This includes overdoses, under doses, forgotten doses, wrong doses, and extra doses. In fact, 75% of all reported nursing home medication errors related to dose omission.

According to the nonprofit group Nursing Home Families, the majority of fatal and serious medication errors from dosage omission concern "adverse consequences." This refers to situations in which a detail about the patient's medical condition, medical and prescription history along with other concurrent medications lead to an adverse reaction with a medication that they've been prescribed. An important factor to keep in mind is that many nursing home residents are more susceptible to adverse consequences from medication errors, since many of these elderly patients are already taking a number of other long-term medications.

How Can Medication Errors be Prevented?

While errors can occur in any of the medical departments associated with nursing homes, all areas are specifically tasked with the important act of monitoring. Monitoring includes continuous observation of patients to: 1) ascertain their responses to treatment, 2) detect complications or adverse consequences, and 3) support their decisions concerning modifying or discontinuing specific medication use.

The pharmacy department has a specific task, which is called a "medication regimen review." This should consist of a pharmacist's "thorough evaluation" of a patient's medication regimen in order to prevent, identify, report, and resolve any medication errors or other irregularities in the patient's treatment.

Since nursing home residents live at the facility where they receive medications and other care, there's a special burden on health-care providers to closely monitor each patient's medication record. When medication records are adequately monitored, studies show that dose omission and related adverse consequences significantly decrease.

Do Not Delay if a Loved One has Been Harmed by Nursing Home Medication Errors!

These cases can be complex and there are unique requirements and deadlines associated with these claims. If you or a loved one has been negatively affected by a nursing home medication error, it is advisable to immediately seek the assistance of an attorney experienced in nursing home negligence and medical malpractice claims to make sure that your rights are protected.

Related Reading:
Hospital Medication Errors More Common Than One Might Think
Are Guns Safer than Hospitals?
Nursing Home Abuse and Medication Issues

Collins & Collins, P.C.
Albuquerque Attorneys