New Mexico Injury Attorney Blog

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

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

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

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

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

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

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

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

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

Related Reading:
Continued Push for Liability Caps Despite Widespread Medical Errors and Decline in Medical Malpractice Claims
Are Guns Safer than Hospitals?
Simple Surgical Checklist Can Save Patient Lives!

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Related Reading:
Patient Advice of Risks and Consent Will Not Bar New Mexico Medical Malpractice Claims
Hot Coffee and the Medical Malpractice Myth
The Myth of the Medical Malpractice Crisis Lives On While Insurance Companies Earn Record Profits

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Related Reading:
Scalding Coffee, Explosive Chicken Sandwiches? Solution Tort Reform!
Personal Injury, Insurance Coverage and the Lies of Tort Reform

Collins & Collins, P.C.
Attorneys at Law

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

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

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

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

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

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

Related Reading:
Worker's Compensation Exclusivity for Injuries On the Way to Work!
Worker's Compensation Exclusivity for Injured Workers Hard to Overcome
Third Party Liability for Work Related Injuries

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Related Reading:
"Concerned Citizens" Rush to Defense of Negligent Nursing Homes
Huge Nursing Home Verdict Brings Predictable Cries for Tort Reform
The Many Signs of Nursing Home Abuse

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Related Reading:
Medical Malpractice Caps and Public Costs, Who Really Pays?
Tort Reform and The Hypocritic Oath
Scalding Coffee, Explosive Chicken Sandwiches? Solution Tort Reform!

Collins & Collins, P.C.
Attorneys at Law

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

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

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

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

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

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

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

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

Related Reading:
Cerebral Palsy Birth Injuries: Devastating, Costly and Sometimes Avoidable!
High Burden of Proof in New Mexico Birth Injury Lawsuits
Medical Malpractice Verdict for Brain Damage from Birth Related Infection

Collins & Collins, P.C.
Attorneys at Law

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

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

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

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

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

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

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

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

Related Reading:
When An Attorney Is (and Isn't) Necessary in a Work-Related Injury Claim
Protections of New Mexico Workers' Compensation Act Waived for Non-Compliant Employers
Proper Equipment Maintenance Critical To Safe Work Environment in the Oil and Gas Industry

Collins & Collins, P.C.
Attorneys at Law