New Mexico Injury Attorney Blog

Nursing homes are big business. With big business comes big profits. To maximize these profits, it seems that nursing home companies will find every possible opportunity to cut costs. There are many ways to cut costs in a business. Unfortunately, cost cutting is rarely consistent with good nursing home care.

In a nursing home, among the best available options is cutting staff. For profit nursing homes carry staff at much reduced levels compared to non-profit nursing homes. In fact, it is estimated that for profit nursing home have an average of 32% fewer nurses that non-profit nursing homes.

It seems the best way to reduce nursing home staff is to reduce the care necessary for nursing home residents. If the residents are easy to manage, there is much less effort required on the part of the staff. More compliant residents means fewer staff.

As it turns out, the best way to achieve compliance is by drugging the resident. The drugging of nursing home residents for purposes of management has been termed chemical restraint. In other words, if they don't leave their rooms, they can't give a staff much trouble.

Numerous studies have been conducted finding that as high as 80% of patients are placed on psychoactive drugs. In a Florida study, 71% of new patients were placed on psychoactive drugs within 3 months of admission. Most had no prior psychiatric diagnosis prior to admission to the nursing home. In many cases both in Florida and beyond, patients are placed on multiple drugs, some with dangerous interactions.

In at least one nursing home, the so-called psychiatric condition for which the drugs were necessary was complaints about the resident's care. In many cases, the drugs are given without the prescription of a physician. And when the resident refuses the medication, the staff will force the resident to take it.

One might ask, other than the unethical and sometimes forced medication of residents for purposes of maximizing profits, how are the for profit nursing home companies doing otherwise in terms of patient care? Not so good as it turns out. For profit nursing home facilities have almost 50% greater deficiencies in care than do their non-profit counterparts. Many move in and out of compliance, correcting problems long enough to avoid fines only to have the problems quickly resurface.

With the privatization of nursing homes and the increased emphasis on profits, cases of "immediate jeopardy" where violations were likely to cause serious injury or death rose by 22%. Naturally, among the strongest proponents of tort reform is the nursing home industry. The typical argument is that profit motives will increase the standard of care weeding out the bad actors through competitive market forces.

These arguments might carry more weight if the standard of care were not in free fall as opportunistic firms enter the industry with the expectation of higher and higher profits from one year to the next and one patient to the next. There are many good nursing home facilities. There are many that truly care for the welfare of their patients. These are not the ones that need protection from medical malpractice caps. It is the egregious offenders that need those protections and it is those offenders to whom we can least afford to provide them.

Collins & Collins, P.C.
Albuquerque Attorneys

It seems that caps on medical malpractice claims are used for political capital by every stripe of politician. Most every political campaign will involve a call for medical malpractice caps even if only by token gesture. Even President Obama threw in a call for caps almost as an obligatory gesture to the crowd during his State of the Union speech. Naturally, everyone cheered enthusiastically.

It is unclear what they are cheering about. The cheering is particularly perplexing coming from the Tea Party. The fact is that medical malpractice caps, or caps on any personal injury claim, shifts the costs of negligence and wrongdoing to the taxpayer from the doctor, hospital, and most importantly the insurance company. This is of course by design.

Hot Coffee, the movie is premiering at Sundance Film Festival. The movie documents the gross mischaracterization of the McDonald's hot coffee case by the U.S. Chamber of Commerce and the Tort Reform movement to basically deny normal folks from access to the courts. It does not stop there, it documents the costs of Tort Reform to taxpayers with an emphasis on medical malpractice liability caps.

The movie documents one particularly sad case of gross medical malpractice that led to cerebral palsy of a newborn twin, Colin Gourley. The movie documents the devastating effect of the malpractice on Colin, his twin brother Connor, and the family. Though some in the political arena are not particularly empathetic toward the suffering of others, all those calling for deficit reduction might at least want to take note of the costs to taxpayers associated with the medical malpractice caps that led to an 80% reduction of the jury verdict for Colin.

It was estimated at trial that Colin's lifetime medical expenses for his cerebral palsy would be $12.4 million. The jury awarded $5.6 million to cover Colin's medical expenses. The Appellate Court knocked the verdict down to $1.2 million which included other damages as well. This leaves a gap of millions for the lifetime care of Colin.

One might ask, what about private health insurance? The family had health insurance. Mr. Gourley lost his job and his medical insurance. Once he gained employment again, he was able to apply for medical insurance for his family. Naturally, the insurance company denied coverage to Colin due to his preexisting injuries.

In sum, the insurance industry escapes financial responsibility for medical malpractice for which they charge astronomical premiums. Then at the other end, the industry escapes coverage for Colin through private medical insurance. The end result is that Colin will be a lifetime beneficiary of Medicaid and the insurance industry has effectively shifted their financial obligations, but not their profits, to the public. And Congress and the President cheer approvingly.

For more information on Hot Coffee, go to Democracy Now, where there is very good reporting on the movie as well as the Medical Malpractice Myth. Make no mistake, we have been duped by the Chamber of Commerce and the Insurance Industry. Judge for yourself once you know the true facts.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New York Times artilce illustrates the predatory nature of personal injury lawsuit funding companies. The article cites instances where plaintiffs ultimately turned over almost their entire settlement or judgment to the lawsuit lenders.

The lawsuit lenders like to call themselves investors. In fact, they are highly predatory lenders. They argue that lawsuit lending is more akin to venture capital than lending. They justify interest rates of up to 100% a year on the rationale that they are at risk of not getting paid back at all.

In reality, most of these companies screen their cases with extreme care. The Times article suggested that the companies will refuse loans on 70% of the applications and then loaned on 10 to 20 percent of the expected recovery. In short, they are looking for slam dunk settlement cases. And, in fact, it is not terribly difficult to evaluate the likelihood of recovery on most cases.

If nothing else, these companies could use programs like the insurance industry's Colossus software for evaluating claims. This software is used by a large number of auto insurance companies. Upon entry of the specifics of an auto accident, the software spits out a settlement range. To the chagrin of many injured persons and their lawyers, there are some insurance companies that will not budge off these very conservative settlement value estimates.

Even without a program like Colossus, cases with high and/or certain settlement value are not hard to spot in most routine personal injury cases. There are others such as medical malpractice and products liability that are more difficult to evaluate and fairly risky to undertake. However, if these companies are truly screening 80% of the cases from eligibility, then it would seem that they are instead focusing on the sure cases with very little risk of loss.

Yet they continue to charge rates up to 100% annual interest. To further illustrate the point that these are low risk, extremely high interest predatory loans, the Times cited one industry leader who stated, "We don't want judges to shine a light on us." To avoid scrutiny from judges who often will refuse to enforce these predatory loans, many of the lenders will loan only on those cases that have a high probability of pre-trial settlement. In others words, they make only very low risk loans or "investment."

What does this mean for you and your personal injury claims? It means that if the company is willing to lend to you, by definition, you should not take their loan. The fact that they have approved the loan suggests that your case has a very good chance of pre-trial settlement.

If you are truly desperate for funds, then you might consider lowering your settlement demand to facilitate a more rapid settlement. This would be a more prudent and far less financially detrimental route than ultimately turning over your settlement to a lawsuit lender.

Collins & Collins, P.C.
Albuquerque Attorneys

When a person suffers personal injuries in an accident, typically medical care is sought through the person's usual medical care providers and insurance company.

In a personal injury case, plaintiffs are sometimes surprised to learn that they are required to reimburse their health insurance company for benefits paid on the injured person's behalf if the injured party recovers from a third-party who is responsible for the injuries.

This situation often arises in automobile accidents or other accidents that occur because of a third-party's negligence. While reimbursement to the insurance company for medical bills can be a concern, New Mexico law provides a doctrine that provides some relief.

New Mexico law requires health insurance companies in most circumstances to reduce the amount of the reimbursement they seek. Under the "common fund doctrine," an attorney who creates a pool of funds for a group has the right to seek payment from the pool, or to seek proportional contribution from those who accept the benefits of the attorney's efforts. Wright v. First Nat. Bank in Albuquerque, 123 N.M. 417, 941 P.2d 498 (1997).

Basically the doctrine requires insurance companies to contribute to the attorneys fee paid by the insured party because the insured incurs attorney's fees in recovering a judgment or settlement that benefits a subrogated insurer.

For example, if an injured person retains an attorney to bring a personal injury claim and the person enters into a one third contingency fee agreement with the attorney, paying the attorney a third of what he receives, the insurance company will similarly reduce their claimed reimbursement by one third. Assuming a plaintiff receives a personal injury settlement of $30,000, and pays his attorney one third or $10,000 plus tax and costs usually, the insurance company will reduce their reimbursement similarly. As a result of the common fund doctrine, if the insurer has paid $9000 in medical benefits, it will reduce its subrogation by one third to $6000.

The effect of the common fund doctrine is to require insurance companies to share their insureds' litigation expenses. The reason being that the insurer benefits from the insured's and attorney's efforts in obtaining a fund to pay the insured, in the form of a settlement or damages award, and the insurer, in the form of a subrogation reimbursement.

Collins & Collins, P.C.
Albuquerque Attorneys

The statute of limitations in most personal injury cases is 3 years from the date of the incident that caused the injuries. In cases against state, county and local governmental entities, the statute of limitations is only 2 years.

Failure to file a suit within the statute of limitations bars a lawsuit completely. In other words, if you do not file within the statutory period, then you cannot file the lawsuit at all. The statute of limitations is harsh and a personal injury plaintiff should not flirt with these deadlines.

There are some rare cases where the statute of limitations may be extended or tolled. These are extremely rare and an injured plaintiff would be well advised not to place any reliance on these exceptions to the statutory deadlines.

Perhaps the most common situation where the statute of limitations would be extended is in cases where the injured party is unaware of the injuries. This often arises in cases of medical negligence. After all, for instance, the patient may not know of a surgical sponge left inside them for years following the surgery.

An injured person may also be unaware of his or her injuries in cases of product defects. Often these too are associated with a medical malpractice claim. The best example currently in the news are the hip replacement recalls from Depuy . There are many other surgical products that have caused injuries to patients which were apparent only years after the surgery.

The same type arguments hold for numerous pharmaceuticals both past and present that have been found to cause serious personal injury to patients. There are currently recalls with either pending or possible lawsuits involving Yaz, Nuvaring, Accutane, Darvon, Darvocet, Gardasil, Fosamax, and Paxil to name only a few. For each, patients may have taken the drugs for years before realizing the harm that the drugs caused. Some may have ceased using the medications long before knowing of their injuries.

There are certainly other situations where an injured party may not be aware of his or her injuries until months or years after the incident. Keep in mind, however, that ignorance of the injuries alone is not sufficient to toll the statute of limitations. If the injured person should have known of the injuries, then there will be no tolling of the statute of limitations. By way of example, this is true in New Mexico even where there are differing medical opinions regarding the source of the injuries.

The bottom line is the statute of limitations is real and it is rigid. There are very few exceptions. It would be exceedingly unwise to ignore an injury or illness that may have been causes by medical negligence, a product defect or any other cause. It is entirely possible that ignorance of the cause may not be grounds for tolling the statute of limitations.

If you are injured or sick and you believe it was caused by the products or actions of another, then seek a medical opinion immediately. If there is more than one possible cause, then it may unfortunately be necessary to sue them all and sort out the causation through litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

Customer or invitee slip and fall accidents are a common occurrence for businesses of all types. Sometimes, they are unavoidable. On occasion, customers/invitees simply fall at no fault of the business owner. There are also occasions where customers fall strictly due to their own negligence.

If the accident was unavoidable by the business owner, then typically the business will not be held liable for the damages resulting from the accident. There are many times when the actions of both the business and the customer/invitee combine to cause the accident. The question of liability is more complicated in these cases.

Many business owners believe that if the customer/invitee is aware of the hazards and is injured anyway, then the business will escape liability for any and all personal injuries suffered by the customer. This is not the case in New Mexico.

There are states that apply contributory negligence principles to personal injury lawsuits. Under contributory negligence, if the customer (or injured party in any other personal injury matter) is even a little at fault, then his or her claims are barred completely. Contributory negligence rules have extremely harsh consequences for injured persons since it could be argued that there is some small level of fault on the injured party in almost every personal injury case.

Recognizing the harshness of contributory negligence, New Mexico follows the more equitable comparative negligence rule. Under this rule, fault is apportioned between the parties. The apportionment will result in a pro rata reduction in liability for the business owner. In other words, if the business owner is only 50% at fault, then the business owner is liable for only 50% of the damages.

Comparative negligence goes further than the 50/50 split. Even if the business owner is only 10% responsible, then the business will be held responsible for its portion of the fault. In cases of serious personal injury or wrongful death, 10% can amount to significant liability.

The principles of comparative negligence are most striking in cases such as construction or repair. For instance, it is well established that even though a customer/invitee is well aware of the hazards of construction, remodeling or repairs such as debris left around the construction site, the business is not totally relieved of liability for the customer/invitee's injuries if the business was also negligent. Just as in any other personal injury case, the liability will be apportioned according to the negligence of each party.

A business owner is well advised to avoid any negligence and to keep the business premises free of possible hazards. Even hazards that should be obvious to the public, if negligently created or allowed, may result in liability in case of an accident.

Collins & Collins, P.C.
Albuquerque Attorneys