New Mexico Injury Attorney Blog

Many personal injury cases involve injuries sustained in an automobile accident. Victims of car accidents often find themselves with mounting medical care bills and wonder how to pay them while the case settles.

New Mexico is a "fault" or tort state for liability purposes in car accidents. This means that generally, the person at fault--and that person's insurance--is liable for the personal injury and property damage that results from the accident.

However, even if the other driver is at fault, their insurance company is under no legal duty to advance medical expenses to a third party. Moreover, it is not common for the insurance company of the opposing party to pay medical or any other expenses in advance of settlement. If and until settlement comes, the victim must figure out how to pay for his or her medical expenses.

A person injured in a car accident has several options when seeking payment for medical expenses before settlement. A victim may file with their own insurance if they have no-fault or MedPay coverage, obtain a letter of protection, or file with their own health insurance.

Many automobile insurance policies offer additional no-fault coverage. No-fault coverage, also called personal injury protection, pays the medical expenses of the driver and passengers of the car covered, regardless of fault. No fault insurance usually covers medical expenses and sometimes lost wages, but only up to the limits of each individual policy. Pain and suffering are not recoverable under no-fault insurance.

A popular form of no-fault coverage is Medical Payments Coverage (MedPay). A person with MedPay coverage will have access to payment advances medical treatment. Since MedPay is a type of no-fault coverage, fault does not have to be determined before using the coverage. MedPay covers medical expenses for the insured driver when driving the insured vehicle, when riding as a passenger in another vehicle, or if hit by a car as a pedestrian. It also covers all passengers riding in the insured vehicle, family members driving the insured vehicle, and a family member if struck by a car as a pedestrian. MedPay coverage is optional and can range from $1,000 to $100,000 per person per accident.

Another option is to obtain a treatment letter of protection. A letter of protection is more like a contract than a letter between the victim, his or her attorney, and the medical provider. The letter of protection will allow the victim to obtain the medical care needed in exchange for a promise from the victim and the victim's attorney to pay medical expenses out of the settlement funds. Nevertheless, not all doctors will accept letters of protection.

In many cases, victims have no other option than to use their own health insurance to pay their mounting medical bills. If a victim has no other funds available, it is advisable to use health insurance to avoid having late medical bills sent to collection for non-payment.

Once the case has settled, the insurance company will ask for reimbursement, also called subrogation, for the amount the insurance company actually paid the medical provider. Since most insurance companies get a discounted rate from medical providers, it is likely that the victim will end up with more of their settlement cash than if they had paid for the treatment out of pocket or failed to pay awaiting settlement.

These lien issues can be complicated. As such, if faced with this situation, it highly advisable to seek the guidance of an experienced personal injury attorney.

In New Mexico, if you suffer an injury in an accident that is due to someone else's negligence, you can recover damages for your injuries from the defendant or the defendant's insurance company.

A plaintiff can recover damages to reimburse the plaintiff for medical expenses, lost wages, pain and suffering and other damages associated with the injuries. However, if you have a pre-existing condition or injury that becomes aggravated or worsens because of the accident, you must admit the pre-existing condition and injury to the defendant.

Failure to admit a pre-existing condition or injury can seriously harm the person's personal injury claims. In some cases, failure to admit through active concealment can result in sanctions, attorney fees and costs and even dismissal of the lawsuit.

A pre-existing condition is a condition that the plaintiff had prior to the accident like a back or neck injury. An experienced personal injury lawyer would far prefer dealing with these injuries upfront than learning of them later through the personal injury discovery process. In fact, the preexisting injuries do not necessarily harm a personal injury claim. However, deceit and concealment of those same injuries always will when discovered by the opposing insurance company. And it is safe to assume that they will be discovered so it is best to address them early and candidly.

The opposing insurance company will always conduct its own discovery on the personal injury claims. The depth and scope of the discovery will depend on the size of the claim. However, even in minor claims, the insurance company will request medical records. In fact, those related to the accident must be provided by your personal injury attorney along with the demand. The insurance company may very well request more than what is provided. Quite often, the insurance company will request the last 10 years of medical records and these must generally be provided.

The collection of medical records can proceed in one of two ways. The plaintiff gathers and provides them. Or the insurance company simply obtains names and addresses for all medical providers along with HIPPA releases and obtains them directly. In fact, even when the plaintiff does provide them during the settlement process, the insurance company may elect to get the records directly anyway.

As noted, the existence of preexisting injuries or conditions does not necessarily you're your claim. In fact, New Mexico like most states follow the "eggshell plaintiff" doctrine which means that the defendant takes the plaintiff with all his or her frailty, susceptibility to injuries, preexisting conditions, and prior injuries. In short, the defendant will be responsible for the aggravation of or reoccurrence of prior conditions or injuries.

The point is to discuss the matter with your attorney immediately. If you have doubts whether the issues are relevant, err on the side of disclosure. Concealment, even arguably innocent concealment, will do nothing to advance your claims.

• Concealing Preexisting Injuries Can Seriously Harm a New Mexico Personal Injury Claim


• Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim

Collins & Collins, P.C.
Albuquerque Attorneys

The term "low impact accident" is one coined by insurance companies to describe automobile accidents where there was little or no property damage and usually occur at very low speeds. Insurance companies insist that since there is little property damage there can only be little or no personal injury involved in a low impact car accident. This is often not the case.

In the past, insurance companies defined low impact accidents as those where there was little of no physical damage to the vehicle and where the estimated cost of repair was $50 or less. However, insurance companies set this threshold themselves and have been increasing it through the years. Some companies today consider any accident involving repairs under $5,000 a low impact accident.

However, according to several specialists, there is no correlation between the severity of property damage and the severity of physical injury in car accidents. While an accident with severe property damage can cause little physical injury, one where there was little or no property damage to the vehicle can involve serious physical injury. While vehicles are designed to withstand low velocity impacts between 5 and 10 miles per hour, the human body is not.

Soft tissue injuries are the most common among low impact car accident victims. Most injuries occur to the soft tissue in the neck and back areas. Soft tissues include muscles, ligaments and tendons and lead to injuries like contusions, bruises, strains, and sprains. Whiplash is the most common injury in low impact accidents.

A study commissioned by General Motors (GM) conducted test crashes at speeds of 8 miles per hour or less and found that whiplash does occur during low velocity crashes, a fact that insurance companies have been denying for years. The GM study also found that more than half of all car accident injuries involve whiplash. Depending on the age of the victim and the severity of the injury, whiplash can be permanently disabling. Almost 30% of people with a neck injury reported suffering neck pain three years after the accident.

Whiplash injuries pose a number of challenges to recovery. First, whiplash will often present a delay in the onset of symptoms. Many victims who are later diagnosed with whiplash fail to report having pain at the scene of the accident and many do not report feeling any pain until 24 hours to one week after the accident.

Additionally, many insurance companies assert that it is impossible to get whiplash in a car with a high seat back or head restraint. However, several studies have proven that this assertion is completely false. If not properly positioned for each person, a headrest may act as a fulcrum and cause whiplash or contribute to whiplash injury. A Federal Motor Vehicle Safety study found that only 25% of adjustable head restraints were positioned correctly. This means that in 75% of cases, the head restraint is likely to cause or contribute to whiplash injury, not prevent it.

Unfortunately, there are some insurance companies that routinely deny or trivialize low impact injuries essentially ignoring the established science. An experienced personal injury attorney can in most cases show an adjuster the error of his or her reasoning. If the adjuster will not respond to reason (and there are some insurance companies that apparently take pride this position), then they must respond to litigation.

Related Reading:

• Valuation of Personal Injury Claims Not Always Strictly About the Numbers


• Fair Settlement of Personal Injury Claims is More Math than Wrath!

The Trayvon Martin case has placed the spotlight on Florida's "stand your ground" law and has given rise to heated debates about whether these kinds of laws encourage vigilantism and allow guilty individuals to get away with murder.

Stand your ground laws essentially state that a person who reasonably believes themselves to be threatened with death or serious bodily injury may use force to defend him or herself, even if there is an available and viable way to retreat. In states that do not have stand your ground laws, an individual who is attacked has the duty to retreat and can only use deadly force when retreat is not possible.

More than half of U.S. states have some type of stand your ground law. New Mexico is among them. The particular elements and requirements of stand your ground laws differ from state to state.

The New Mexico stand your ground law differs somewhat from the Florida law currently at issue. According to the New Mexico stand your ground law, "A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." While a person in Florida must have a right to be at the location where the altercation takes place, in New Mexico a person merely needs to be "threatened with attack."

However, this does not mean that there are not very significant risks associated with exercising the right to stand one's ground. In addition to possible very serious criminal charges, a person found to have acted wrongly would be looking at significant personal liability for personal injury and wrongful death claims.

For a defendant to avail himself of the stand your ground provision as part of a self-defense argument in New Mexico, a court typically considers whether the defendant was acting in self-defense in the first place. In New Mexico, a defendant who kills another in self-defense while standing his or her ground must show that he or she (1) was placed in reasonable fear of immediate death or great bodily harm, (2) used a reasonable amount of force to avoid the threat, and (3) did not instigate the encounter.

Under New Mexico law, the defendant's perception of the threat must have been reasonable. Armed pursuit of an individual through a dark neighborhood does not show reasonable fear or perception of threat. On the contrary, armed pursuit may show absence of fear. Additionally in New Mexico, a person using self-defense may not use more force than is reasonably necessary to evade the threat. For example, shooting an unarmed individual during a fistfight will generally be considered using more force than is reasonably necessary. Likewise, beating someone to a pulp following an initial threat would probably raise possible problems as well.

A defendant who, as alleged in the Florida case, voluntarily pursues, confronts, or in any way instigates the altercation may not then claim they were acting in self-defense or standing their ground. Similarly, a defendant will not be permitted to use a self- defense/ stand your ground defense if the other person tried to de-escalate or defuse the situation and the defendant failed to relent.

In short, the right to stand one's ground is not a blanket defense to criminal charges. And such behavior may fare even worse in civil court in a personal injury lawsuit where the burdens of proof are far less than the high criminal burden of beyond a reasonable doubt.

Most people who admit a loved one into a nursing home do so because the senior requires constant care that they are not able to personally provide. The nursing home undertakes this responsibility, which includes supervising and ensuring that the resident does not put him or herself in a dangerous situation. Nonetheless, many residents manage to wander or "elope" from the nursing home grounds, which often puts them at high risk for injury, attack, exposure, and even death.

Even though often used interchangeably in the nursing home industry, "elopement" and wandering are slightly different. Elopement occurs when a resident who is unable to protect him or herself goes off nursing home grounds unsupervised and encounters some form of harm or danger. Wandering occurs when a resident with dementia, Alzheimer's, or other psychiatric diagnosis encounters a dangerous situation while moving around the nursing home facility unsupervised.

There is no single set of characteristics that indicate that a nursing home resident is at risk for wandering or elopement. However, there are several factors that a nursing home must take into account when assessing a resident's risk for eloping or wandering. The resident's age and mobility should always be considered. It is more likely for a highly mobile, younger resident to elope or wander than it is for a resident who is recovering from hip surgery. It is also more likely for a resident with dementia or other psychiatric diagnosis to stroll off and put him or herself in harm's way. Also, previous incidents involving wandering or eloping can be indicators that the resident is prone to doing it again.

If a patient is at a high risk for wandering or elopement--say because she suffers from dementia, has no mobility issues, and has eloped or wandered several times in the past--the nursing home may be required to assess this risk and formulate a plan to prevent it. Under the federal Nursing Home Reform Act (Act), 42 USC § 1395I-3, a nursing facility is required to conduct an initial assessment of a resident's capabilities, medical issues, and needs within a few days of admission. If the patient is at a high risk for wandering or elopement, this should be noted on the initial assessment. Based on the assessment, nursing facilities are required to formulate a comprehensive care plan after the assessment is finalized. Subsequent assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident. An episode of elopement or wandering that has resulted in an injury or a high risk of an injury for the patient should prompt an assessment and a new care plan that ensures that the patient does not repeat his or her actions.

Recurring incidences of elopement or wandering resulting in a resident's injury or death may signal nursing home neglect and/or abuse. Wandering and elopement should generally not occur, and when it does, should be detected early enough to avoid injury to the resident if the nursing home follows certain principles and procedures. These include hiring the adequate staff to supervise all of the nursing home residents; train staff properly on supervising residents; install alarms, cameras, and other surveillance devices at exits and entrances as well as near restricted or dangerous locations; adequately assess the risk for elopement or wandering of each individual resident; and having a quick-response plan in place.

While it is true that nursing homes must walk a fine line between not severely restricting residents' freedom of movement and keeping them safe, it is the nature of the care that they offer and something that should always be a priority for staff and administrators. Failure to properly guard against wandering and elopement may constitute neglect on the part of the nursing home. In cases where the patient is injured, this neglect may give rise to a personal injury claim.

If you loved one has been seriously injured as a result of wandering or elopement in a nursing home, it is important to contact an experienced personal injury law attorney right away to fully protect the rights and safety of your loved one.

Related Reading:

• Malnutrition and Dehydration in Nursing Homes


• Nursing Home Abuse and Medication Issues


• Nursing Homes' Patient Records Often Neglected and Occasionally Deliberately Falsified

Collins & Collins, P.C.
Albuquerque Attorneys

An article in the National Journal last year reported that medical mistakes cost the nation's health care system tens of billions of dollars every year. Unfortunately, instead of getting serious about eliminating those errors, many tort reform advocates continue to argue for a change in personal injury laws, including caps on awards for medical malpractice. Far from offering robust healthcare savings, a look at the numbers and malpractice rates shows that the insurance companies are the only real winners in tort reform.

It is no secret that the healthcare industry spends billions of dollars in medical malpractice suits every year. According to Pamela Villarreal of the National Center for Policy Analysis between 18 to 45 cents of every dollar spent on healthcare in the U.S. is related to a mistake made by a healthcare provider. Jill Van Den Bos and colleagues at Milliman's Denver Health Practice reported that in 2008, cases involving post-surgery infections cost the industry $3.36 billion. In the same year, bedsores, a completely preventable condition, cost the industry $3.27 billion.

Considering the staggering costs to patients and medical providers, one might assume that there would be universal focus on making medical care safer. Not so. Instead, certain interest groups are actually working to reduce the degree to which medical providers are held accountable for their errors. New Mexico, for example, places several limitations on damages in civil cases. Under the Medical Malpractice Act (Act), NMSA 1978, there is a $600,000 cap for damages for medical malpractice. The cap excludes past medical costs and benefits, but the Act prohibits monetary damages for future medical expenses, which are paid as they are incurred. The Act also limits an individual health care provider's (or more accurately his or her insurance company) personal liability to $200,000.

Insurance companies argue that tort reform in general and caps on damages in particular are necessary to reduce healthcare costs, lower insurance premiums for medical professionals, and promote improvement in care so that doctors are not engaging in "defensive medicine." Countless studies show that this is not the case. On the contrary, healthcare costs are rising, healthcare insurance premiums are higher, and there is little progress in preventing medical mistakes and malpractice. This is all in spite, or maybe because of, caps on damages.

There is ample evidence to support the proposition that medical malpractice caps have little to no impact on healthcare costs. A 2010 Robert Wood Johnson Study revealed that medical malpractice insurance premiums account for less than 2% of all healthcare costs. According to the same study, there would be very little impact on healthcare costs even if the most stringent tort reform measures were put in place. The 2011 report by Public Citizen, "A Failed Experiment," which studied the effect of Texas' $250,000 cap on non-economic damages, revealed that since the cap has been law, Medicare costs have risen faster in Texas than in the rest of the country and health insurance premiums have risen above the national average.

Similarly, damage caps have not lowered insurance premiums for medical professionals. A National Center for Policy Analysis study was unable to find a correlation between damage caps and malpractice insurance premiums. Other studies have found that premiums rise in response to a broad range of economic factors, not the amount of malpractice payments. Yet others have shown that insurance premiums rise at a higher rate in states with caps than in states without caps. What all of this research shows is that if anything, caps have a negative effect on the cost of insurance premiums for malpractice coverage.

What may be even more frightening is that caps on damages may eliminate the incentive to improve health care in general. There are several studies of hospitals and healthcare centers that have instituted successful prevention programs after being forced to pay out a large malpractice suit. The possibility of an expensive medical malpractice suit has incentivized providers to invest in programs that eliminate errors. Without this incentive, medical providers will have fewer reasons to seek to improve quality and avoid mistakes, resulting in an increased number of deaths and injuries that could have been avoided. As it stands now, it is estimated that up to 98,000 patients each year die as a result of medical malpractice.

As states continue to enact caps on medical malpractice damages, the returns are meager. Contrary to what tort reformers promise, healthcare is getting costlier and less safe for the average person. The only real winners in all of this are the insurance companies.

Related Reading:

• Emergency Room & Emergency Responder Immunity: Safe Haven for Negligence and Incompetence?


• Medical Malpractice Reform Harms Patients and the Taxpaying Public


• The Myth of the Frivolous Medical Malpractice Lawsuit




Collins & Collins, P.C.
Albuquerque Attorneys

Dehydration and malnutrition have become so commonplace in nursing homes that many have called them "the silent killers." According to a study by The Commonwealth Fund, 35 to 85% of nursing home residents suffer from malnutrition, and between 30 and 50% are underweight. Another study published by the Journal of the American Geriatric Society found that an alarming 39 out of 40 residents studied did not receive adequate fluids for every day that the study was conducted. The Centers for Disease Control (CDC) estimated that as many as 208,000 patients over the age of 65 were released from short-term hospital stays with a primary diagnosis of dehydration.

Despite Federal and state laws requiring that nursing homes provide for their residents' nutritional needs, malnutrition and dehydration continue to plague the nursing home system. Under the Nursing Home Reform Act of 1987, 42 CFR § 483.25, nursing homes are required to ensure that a nursing home resident "maintains acceptable parameters of nutritional status," measured by weight and protein levels. They are also required to provide a resident with a therapeutic diet if nutrition becomes an issue. Additionally, if a resident is unable to care for him or herself, the nursing home is required to provide all of the services necessary to ensure proper nutrition.

There are many causes for dehydration and malnutrition in nursing homes. Many nursing home residents often cannot take care of themselves and in some cases need help eating and drinking. According to the Commonwealth Fund study, 40 to 60% of residents suffer from dysphagia, or swallowing disorders. Dysphagia may occur as a result of Parkinson's disease, strokes, dementia, or other neurological disorders. Additionally, 60 to 70% of nursing home residents suffer from some form of cognitive impairment, which in many cases involves patients who require assistance eating.

There are several other reasons why a nursing home resident may become dehydrated or malnourished. In certain cases, depression and cognitive impairment may lead to weight loss. In others, dental health problems that are not properly managed may make the patient unable to eat or limit their diet. In yet other cases, cultural or ethnic preferences may not be available in the nursing home's restricted menu. Some medications, including anti-depressants and high blood pressure medicine act as diuretics; other medications may make a patient sweat more.

There are several dangers involved with malnutrition and dehydration, especially among the elderly. Besides aggravating many existing ailments, malnutrition and dehydration can lead to tooth decay, high blood pressure, and even death. Dehydration can also cause kidney failure, coma, and electrolyte abnormalities.

Under the Nursing Home Reform Act, failure to detect and treat malnutrition and dehydration is a form of neglect. Several studies have suggested that incidences of malnutrition and dehydration can almost always be attributed to understaffing and poor supervision. Solutions as simple as having an adequate number of staff that are properly trained to supervise resident's food and fluid intake and routinely offering a resident fluids or food could avoid a large number of these situations and save lives.

While it is good news that these conditions are almost always preventable, it is also alarming to know that all of the injuries and even deaths that resulted from these conditions should not have happened had the nursing home not been negligent. If your loved one has suffered similar injuries as a result of the neglect of his or her nursing home, it is important address the issue immediately with the staff. If this does not fix the problem or severe injuries have already been suffered, then you should consult with an experienced personal injury attorney to determine whether or not there might be a nursing home negligence or abuse claim.

Collins & Collins, P.C.
Albuquerque Attorneys

Doctors at Monash Medical Centre in Melbourne, Australia announced a new medical trial that will use melatonin in an effort to prevent prenatal fetal brain injuries, including cerebral palsy. The trial will involve 20 women and will go on for 12 months. Even though results are not expected until 2013, there is reason to be cautiously optimistic.

According to the Centers for Disease Control (CDC) one in every 303 children in the U.S. suffers from cerebral palsy. Cerebral palsy describes a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. However, in a large majority of cerebral palsy cases, the damage occurs during pregnancy.

Whatever the cause, cerebral palsy greatly inhibits a child's development and quality of life. The severity of symptoms can range from moderate to severe. Many children with cerebral palsy require life-long, around-the-clock care.

The Monash study builds on previous research by its scientists and doctors who have found a link between intrauterine fetal growth restriction (IUGR) and injuries to the developing brain of the fetus. According to the specialists at Monash Medical Centre, one in 20 pregnant women exhibit IUGR, a situation where the placenta does not provide sufficient nutrients and oxygen to the developing fetus' brain. IUGR is responsible for a large number of cerebral palsy cases, but currently there is little doctors have been able to do in the way of treatment. The Australian study represents new hope in this field.

The doctors and specialists at Monash Medical Centre have spent the last five years studying and observing the causes of brain injuries and IUGR. Their research has established that the brain injury is caused by oxidative stress, where an excess of free radicals causes tissue damage. Free radicals are highly reactive chemicals associated with cell damage.

According to the doctors and scientists at Monash, doses of melatonin could prevent oxidative stress by protecting fetal brain cells. Melatonin is produced by the pineal gland, and besides regulating important functions in the body, such as the wake-sleep cycle, it is also a powerful antioxidant. With its ability to easily cross cell membranes and from blood to brain cells, scientists at Monash hope that melatonin will prevent oxidative damage to cells caused by free radicals.

The Monash study will include 20 pregnant women who will be administered melatonin orally in tablet form if they exhibit IUGR. Research at Monash has already shown that free radical levels in cord blood of IUGR births are higher than in normal births. The trial will also test the cord blood of babies who were given melatonin for free radical levels to see whether the treatment was successful. If successful, a second trial will include 100 women and two- and three-year follow-up exams of babies to test for development of cerebral palsy.

The trial, if successful, could represent major progress in prenatal treatment and hopefully prevent cerebral palsy in some children. There will still be those instances of cerebral palsy caused by medical negligence. The study does not address those cases. If your child has been the victim of medical negligence, then it is important to seek the counsel of an experienced personal injury attorney as soon as possible due to the unique deadlines associated with medical malpractice claims.

Collins & Collins, P.C.
Albuquerque Attorneys

The last thing that a person wants to worry about when they admit a loved one into a nursing home is the possibility of abuse through medication. There are several types of nursing home abuse that involve medication, and it is important to be aware of them to be able to identify and stop this practice.

Many common forms of abuse in nursing homes are related to medication and its administration to the resident, all of which constitutes negligence with potential legal liability. Sometimes patients may be overmedicated, receive medication in the wrong dosage, or be given the wrong medication. In other cases, food and medication allergies are overlooked due to the negligent failure to communicate among staff members regarding medication.

Overmedication, sometimes also referred to as chemical restraint, is often an intentional form of abuse. Overmedication occurs when nursing home staff provides patients with non-prescribed medication or higher doses of prescribed medication in order to pacify the patient. This of course makes the jobs of nursing home staff easier since they need provide little care to incapacitated patients.

Several studies show that an alarming number of nursing homes use chemical restraint to control unruly or problematic patients. In 2010, a California nursing home director was charged with providing anti-psychotic drugs to difficult patients, resulting in the death of three residents. According to the FDA, an estimated 15,000 nursing home residents die each year as a result of unnecessary and off-label use of anti-psychotic medication.

In other cases, the nursing home staff gives residents the wrong medication. This is usually unintentional and the product of understaffing and failure to train and keep accurate records. This practice can cause several serious complications for the patient that may even lead to death.

Administration of the wrong medication presents several dangers. On the one hand, when a patient is given the wrong medication, he or she is not being treated for the condition that they have, and on the other hand, the medication they are being given may harmfully interact with other drugs.

Many cases involving medication entail negligent documentation and communication among staff members. In certain cases, staff members fail to chart the administration of medication causing repeat dosing. In other cases, staff document giving a patient medication when in fact they did not. In still other cases, there is a failure in documenting all of the medications given to a patient, causing harmful drug interactions. Finally, all the medications may be perfectly documented yet the potential serious and sometimes life threatening interactions may be ignored.

If you suspect that a love one is being overmedicated, being given an incorrect medication, given the wrong dosage, exposed to dangerous interactions, over-medicated or otherwise suffering from medication errors, you should address the situation immediately with the nursing home administration.

The first step is to ask to see medication logs and order blood tests. Unfortunately, the next step is often contacting an attorney. This is often the only thing that will get the facility's attention. The New Mexico Attorney General's Elder Abuse Division is a good place to start. If your loved one has been harmed by medication errors, it may then be time to speak with an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Nursing homes are responsible for every aspect of care for their residents. To this end, nursing homes must keep accurate and timely documentation of the services that they provide their patients--from feeding and medication administration to physical therapy sessions. Accurate record keeping is essential to providing adequate nursing home care.

Unfortunately, , many nursing homes fail to keep proper records. Others still will falsify patient records to protect themselves from liability for personal injury lawsuits for the neglect and/or abuse of patients. While these practices are not uncommon, even inadvertent or neglectful inaccurate recordkeeping is dangerous and unacceptable. Inaccurate recordkeeping can and often does lead to severe injuries to patients. Sadly, in some cases these practices can even lead to the death of the resident.

Nursing homes are required to keep certain records by federal law. Under the federal Nursing Home Reform Act (Act), 42 USC § 1395I-3, a nursing facility is required to conduct an initial assessment of a resident's capabilities, medical issues, and needs within 14 days (7 days for Medicare) of admission. These assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident.

Based on the assessment, nursing facilities are required to formulate a comprehensive care plan within 7 days after the assessment is finalized. Falsification of assessment documents or care plans carries a civil monetary penalty that ranges from $1,000 to $5,000 per occurrence. Nursing facilities are also required to document pharmaceutical, nursing, rehabilitation, dietary, and social services performed.

However, reports around the country demonstrate on-going fraud and falsification of records in nursing homes. Research and case studies have revealed that there are several ways in which a nursing home can forge records and harm patients. The three most common patterns include falsification of records to cover up unfavorable outcomes, "fill-in-the-blank" chart keeping, and false medicine recording.

In many cases, nursing homes try to minimize their liability by changing a patient's records or failing to report incidents after an injury or death. Earlier this year, a nurse at a New York nursing home was found guilty of falsifying a patient's medical chart after the resident suffered a serious fall that was not documented. In another case, after witnessing a member of the staff severely beating a patient, an EMT was advised not to report the incident by a nursing supervisor. Though these may seem extreme lesser instances of failed reporting occur with regularity.

Some of these result from a variety of institutionalized practices. For instance, fill-in-the-blank charting occurs when nursing home staff members fill large numbers of charts at the same time without really knowing whether the treatment, medication, or diet was provided or whether the information they enter is accurate. This may happen in understaffed nursing homes or when an employee is not being properly trained and supervised. One nursing home in Santa Monica recently settled a case where a patient's chart claimed that the resident was given physical therapy several times a week. However, up to 28 of the sessions were documented by staff members who were not working on those specific days.

Similar to the above, falsified medication recording are not uncommon where staff members document that medication is being given in a certain dosage when in reality the dosage is incorrect, the medicine is not being administered at all or the wrong medication is being given. Other patterns that are not as common but still occur include backdating or forging arbitration agreements and falsification of consent forms to sedate residents. This practice may become more common with the recent United States Supreme Court opinion holding these agreements fully enforceable even under rather suspect circumstances surrounding the execution of the agreements.

Even though falsification of records and documentation is widespread in the nursing home industry, facilities are not often prosecuted or cited for this violation. Discovering and proving the falsification of records is so difficult and time-consuming that state agencies rarely have the time and resources to complete a thorough investigation.

Even though it may not avoid falsifications entirely, many personal injury attorneys suggest that staff is less likely to alter the records of a patient whose family is involved in their care. If you suspect that a nursing home is falsifying a loved one's records, it is important to contact a personal injury attorney immediately. Delay may make proving the violations somewhat more challenging.

Collins & Collins, P.C.
Albuquerque Attorneys

Injuries sustained by an infant during the labor and delivery process can lead to a lifetime of special needs and care. The services and supplies needed to bring some sort of normalcy to the injured child can quickly deplete even the most financially stable of families. Compensation for medical negligence or malpractice may ease some of the financial burdens of caring for a special needs child. Yet, this compensation can be quite challenging to obtain due to a wide variety of defenses that may be asserted in a birth injury lawsuit.

In attempting to obtain a legal remedy for a birth injury related to medical malpractice, it is the duty of the plaintiff, the one bringing the suit, to prove the injury resulted when the medical professional breached their responsibility to provide reasonable medical care. This seems like a fairly strait forward statement on the surface; yet, differing interpretations of the terms "duty," "breach" and "reasonable" can complicate proving one's claim.

Defining the standard of care can also present a major obstacle for the plaintiff. The standard of care can differ from medical facility to medical facility, as well as from physician to physician when faced with the same medical event. The standard of care usually must be explained by an expert witness, who describes their opinion regarding the proper response to or method used during the injuring event in question. Both the plaintiff and the defendant are allowed to introduce experts, and these experts can and often do present contradictory positions regarding the proper standard of care, particularly in situations involving a judgment call.

Causation is another factor that can diminish the plaintiff's case, as the defense may allege other possible reasons for the birth injury, like fetal developmental issues, maternal complications or genetic defects. The presence of any of these potential causes may limit or negate the responsibility of the medical professional in the eyes of a judge or jury even where there was medical negligence.

Defense counsel may also rely on how foreseeable a birth injury may or may not have been, given all the data and diagnostics a reasonable physician has at the time of delivery. If risk factors for certain birth injuries are not known beforehand, a medical provider may be able to successfully argue that he was not able to foresee the possibility of birth injury and thus, he did not breach his duty to provide reasonable medical care.

There may be many other defenses that can be alleged to challenge a medical malpractice claim involving birth injuries. Due to the huge level of damages in many birth injury cases, these cases are fought very hard by medical professionals and facilities. The costs and stress of a suit can be significant on the family. It is therefore important that the case be properly evaluated from the outset by an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Despite interventions put in place to help reduce the number of teen fatalities, car accidents still top the list as the number one cause of death for individuals aged 15 to 20. And not only are teen drivers at risk, it was found that 63% of teen passengers killed in an auto accident, were in a car driven by another teen. And, the risk of crash increases with every teenage passenger in the car.

Ultimately, teen drivers continue to be challenged by their immaturity and lack of driving experience, issues that can only resolve over time. Knowing some of the risks involved in driving, as well as participating in programs that help reduce these risks may better assist teens in meeting the challenges they face on the road.

Male teen drivers face the highest risk of an auto accidents, and are two times more likely to be involved in a crash than their female counterparts. Other high-risk teens include those who just received their licenses and those driving a car with other teen passengers.

High-risk behaviors are also prevalent among teens, which may include avoiding seatbelts, speeding and alcohol consumption. Perhaps the greatest risk, however, is the irresistible urge to to talk and text from their mobile phones. In fact, these practices have been shown to equal or exceed the risk associated with drunk driving. Sadly, teenagers are often prone to both at the same time.

Proven methods do exist in helping to prevent teen fatalities from auto accidents. The Centers for Disease Control states that graduated drivers licensing (GDL) programs can decrease fatalities among 16-year-old drivers as much at 38%. These programs are designed to give teens an opportunity to gain driving experience in a reduced risk setting that typically includes adult supervision. GDL programs may also prohibit cell phone use, restrict certain passengers, and limit nighttime driving, all behaviors that increase the risk of auto accidents.

Parental involvement is another factor in reducing the risks teenage drivers face. Indeed, research indicates teens with involved parents developed better driving habits, like remaining in acceptable speed limits and wearing seatbelts. According to the Research Institute at Children's Hospital of Philadelphia, teens were 30% less likely to use a cell phone while driving, were 70% less likely to drink and drive, and were half as likely to speed when they had parents actively engaged in setting boundaries and monitoring their activities.

There are also various on-line driver resources that can enhance traditional driver's education programs. The National Safety Council has several on-line courses, including "Alive at 25 Parent Program," that helps parents and teens partner in driver safety. The web also has teen-led safety initiatives, like "Keep the Drive," in which teens become the activists who spread the message of driver safety among their peers.

Unfortunately, auto accidents still rank highest in teen fatalities; however, most are preventable through risk awareness, experience, parental involvement, and additional training. In the end, time and experience will bring most teens safely through the precarious years of learning to drive.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Centers for Disease Control and Prevention, as many as 1 out of every 10 nursing home residents suffer from bedsores. Also known as pressure sores, decubitus ulcers, and pressure ulcers, bedsores may be symptomatic of a greater problem of nursing home neglect.

Bedsores a leading cause of iatrogenic death in the U.S. according to numerous reports. An iatrogenic death is an unexpected death caused by medical treatment. Bedsores are caused by constant unrelieved pressure and poor circulation. They are more likely to occur in areas where bone and skin are in close contact--like the back of the head, lower back, hip, elbow, and ankle areas. People with limited mobility are more prone to acquiring pressure sores.

Bedsores are divided into four stages depending on severity; from stage I, where the site is painful but the skin is intact, to stage IV, where there is large-scale loss of tissue. Pressure sores are treatable if discovered early, but they may be fatal in some cases if not properly detected and treated. Unfortunately, the treatment of bedsores is slow and painful.

Bedsores are among the most common injuries acquired in nursing homes and may signal other forms of nursing home negligence and neglect. The development of bedsores on nursing home residents may indicate several mistakes made on the part of the nursing home staff, from negligent monitoring, to poor nutrition, lack of exercise, lack of hygiene, or improperly managed incontinence.

Despite mobility problems, paralysis, and coma, studies show that most bedsores are preventable if nursing homes are attentive and properly care for patients. In fact, to participate in Medicare and Medicaid, nursing homes must comply with several federal laws regarding nursing home care that specifically address bedsores.

Under 42 CFR 483.25, nursing homes have the duty to prevent patients from developing pressure sores. For patients with existing pressure sores, nursing homes have the duty to provide proper treatment to ensure that the sores heal, do not become infected, and do not spread to other areas.

To ensure their compliance with these regulations, nursing homes often employ a bedsore prevention program that consists of regular evaluations and the development of a care plan. The problem is that in most cases of bedsores, prevention programs and care plans have been in place but have been improperly implemented or ignored by nursing home staff.

What is even more troubling is that in cases where there were allegations of neglect related to bedsores, the accusations were often accompanied by evidence that the nursing home altered records in an attempt to cover up their negligence.

Even though they may be difficult to prevent, nursing homes have a duty to monitor all patients for the development of pressure sores. For patients with limited mobility issues, the nursing home should implement a care plan to ensure that bedsores do not develop. If bedsores are present, the nursing home staff has a duty to discover them in their early, treatable stages, and to provide adequate treatment.

In light of the fact that bedsores in patients may lead to a reduction in Medicare and Medicaid reimbursements not to mention large jury awards, many nursing homes try to shift responsibility to the patient. On several occasions, nursing homes have argued that bedsores were unavoidable due to the patient's old age, mobility issues, and obesity. Other nursing homes have argued that the patient did not comply with medical advice, the patient acquired the bedsore prior to admission, or the patient suffered from a medical complication such as diabetes.

Regardless of all of the above, the nursing home has a duty to evaluate each patient individually, identify bedsores or risk for bedsores, and act accordingly. At no time should bedsores go undetected for an extended period or reach a stage of infection where they are no longer treatable.

If a loved one has developed bedsores at a nursing home this may be a sign of neglect, for which there may be a personal injury claim. If you discover a bedsore, you should demand immediate treatment and a plan to avoid future such issues. If the bedsores are advanced or recurring in nature, you should probably seek the advice of a personal injury attorney to protect your loved one.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Bureau of Labor Statistics 3.1 million nonfatal workplace injuries and illnesses were reported in 2010. A preliminary total of 4,547 fatal workplace injuries were reported for the same year. Most companies and employers in New Mexico are responsive to laws concerning job-related injuries. However, stories of how companies have refused to pay worker's compensation benefits are constantly surfacing in the news. It is natural for individuals injured in a work-related accident to wonder if their employers have done everything they can and are required to do by law.

Under the New Mexico Workers Compensation Act (Act), if a personal injury or death occurred while an employee was performing a work-related duty, the employee is entitled to worker's compensation benefits for his or her injuries. Worker's compensation in New Mexico covers medical, indemnity, and funeral benefits. Medical benefits include physical care and therapy, hospitalization costs, psychiatric care, counseling, chiropractic treatment, medication, and prescribed medical equipment.

Depending on the extent of injury, New Mexico Worker's Compensation is meant to cover a portion of income while the disability lasts. The types of benefits available are total disability (TTD), permanent partial disability (PPD), and permanent total disability (PTD).

However, the Act limits the amount an employee is able to recover for a personal injury or death that occurred on the job. In fact, in cases of serious injury or death, the benefits allowable under worker's compensation are sorely inadequate. For injuries suffered on the job, the benefits allowable under the Act are the exclusive remedy for those employers that are in compliance with the provisions of the Act.

Having said this, there may be several reasons to contact an experienced personal injury attorney for injury or death arising from a work-related accident. In some cases, employers fail to live up to their responsibilities under the Act. If the employer has failed to obtain worker's compensation insurance, then the employer will not be protected by the Act. Without the protection of the Act, the injured employee may sue the employer for all recoverable damages just like any other defendant.

In other cases, there may be a third party involved in the work-related injury. Third parties can be part of a work related injury in many ways. For example, there may be several different contractors working on a construction site where an employee is injured. For workers whose jobs involve transportation, the negligent acts of another driver or passenger may injure them. In yet another case, a worker may be injured on the job by a defective product manufactured by a third party. In all of these cases and many others, an employee may have a personal injury or wrongful death suit against a third party above and beyond their worker's compensation claim.

Generally, if an employer is complying with the Worker's Compensation Act, an employee may not bring a worker's compensation claim against the employer. Nor can an employee sue to the employer in personal injury. If, however, the employer is not complying with the Act, or there is a third party involved, the injured employee may have a valid personal injury claim. In these cases, it is important to contact a personal injury attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys

The decision to admit a loved one into a nursing home is never easy. However, for many families it is a necessary decision, especially if the family member needs around the clock care. When admitting someone into a nursing home, most people think that their loved one will be well cared for--nobody expects that their loved one will experience neglect or abuse at the hands of their caretakers.

However, the numbers tell a different story. Nursing home abuse is becoming an all too common phenomenon, which is troubling as our older population increases and more and more families are faced with the need to admit a loved one into a long-term care facility. In order to protect loved ones from nursing home abuse, it is important to be aware of the types of abuse and the signs that may be present. Nursing home abuse can take many forms, including physical, sexual, and emotional abuse. Other forms of abuse include general neglect and financial fraud and exploitation.

Physical abuse in nursing homes can range from physical injury to the improper use of medication and restraints. Physical abuse is probably the easiest form of nursing home abuse to spot, because there are usually obvious signs of injury present like broken bones, bruising, and cuts.

Emotional abuse in a nursing home can be either in the form of verbal abuse or passive abuse. Verbal abuse includes speaking to an elderly person in a way that causes fear, anxiety, and distress. This can take the form of insults, taunting, or threats. A more passive form of emotional abuse includes caregivers who ignore the patient or subject the patient to long periods of isolation. Even though more difficult to detect, emotional abuse can be extremely damaging to the individual and may leave long lasting emotional scars.

General neglect is a major form of nursing home abuse and can take many forms. In some cases, staff may withhold food or water. In others, the nursing home fails to change bed linens or provide residents with clean clothing. Other nursing homes may fail to monitor patients for preventable illnesses and injuries such as bedsores and viruses. Yet others withhold medication from their patients or fail to administer medication at prescribed intervals.

Financial abuse ranges from slowly stealing small amounts over time to complex operations designed to take entire life savings. Many advocates argue that financial abuse is perhaps the most common form of elder abuse today, but in many cases it may be the most difficult to detect and rectify.

There are obvious and not-so-obvious signs to look for if you suspect that your loved one may be a victim of nursing home abuse:

o Unusual bleeding o Unusual bruising o Wounds, cuts, or sores o Hair loss o Unusual weight loss o Decline in personal hygiene o Burns and abrasions o Soiled, torn bedding o Unresponsiveness, loss of interest o Emotional or physical withdrawal o Infantile or aggressive behavior towards friends and family o Hurting another resident o Loss of personal belongings o Unusual financial transactions o Bickering with staff o Staff refuses access to patient during regular visiting hours o Staff does not leave the room during visit

Friends and family members need to be vigilant for these and other warning signs of nursing home abuse. Understanding the types of abuse and their warning signs is important in putting an end to nursing home abuse and protecting seniors. If you suspect nursing home abuse, it is important to contact a personal injury attorney immediately to ensure the safety of your loved one.

Collins & Collins, P.C.
Albuquerque Attorneys