New Mexico Injury Attorney Blog

Slip and fall accidents are very common. Though they sound trivial and are often mocked, they sometimes lead to serious injuries. On occasion, these injuries are not apparent at the time of the accident. For instance, a torn rotator cuff or torn meniscus may at first appear as just a sore shoulder or knee.

Stores businesses will often take advantage of the latent injuries by offering to settle cheap on the spot literally offering as little as $100 to clear the aisle and to be on your way. For those that accept the money and sign a release, there is little that can be done to undo the financial harm of what often turns out to be a highly inadvisable decision.

Then there are those stores and businesses that will in an effort to get an injured person on his or her way offer to pay the person's medical expenses. In fact, this promise is quite common. Almost as common it seems is a later refusal to honor the promise to pay medical expense. And though there is little help for those in the first situation, there is very real and significant relief for those in the second.

In New Mexico, a breach of a promise to cover medical expenses carries with it the possibility of punitive damages. The 1989 New Mexico Supreme Court case of Romero v. Mervyn's found that failure to uphold the promise constituted a "breach of the implied covenant of good faith and fair dealing." The Court noted that the "stonewalling" in these cases "goes beyond the mere breach of contract. It offends accepted notions of business ethics" justifying the award of punitive damages.

The facts of Romero are remarkable. Ms. Romero was actually injured by another patron with no relationship to the store. In addition, it appeared that the other patron intentionally harmed Ms. Romero so that there was little that Mervyn's could have done to prevent the injuries. Had Mervyn's stopped there, there would likely have been no liability. However, Mervyn's in a magnanimous but empty gesture offered to pay Romero's medical expenses. In the end, the medical expenses were $2041.00. Mervyn's was ordered to pay the medical expenses plus $25,000 in punitive damages.

The amount of the punitive damages was not great. However, the fact that it was 10 times greater than compensatory damages makes the case important. These damages could add up in the case of torn rotator cuff, torn MCL/ACL, broken wrist which are among the most common slip and fall injuries.

Despite the law established in Romero, the practice of reneging on the initial promise to pay medical expenses is still quite common. For anyone involved in a slip and fall accident at a store or business, it is extremely important to document the promise to pay at the time of the accident or as soon thereafter as possible. This grows more difficult with time. And you guessed it, those that would make and break a promise to pay medical expenses will likewise deny the promise was ever made.

Collins & Collins, P.C.
Albuquerque Attorneys

Medical malpractice reform is all the rage in politics these days. President Obama even seems to have jumped on the bandwagon. Many states are lining up to pass their own versions of medical malpractice caps under the guise of protecting doctors and patients.

The reality is that medical malpractice lawsuits have been on the decline for many years. In addition, those that are taken to trial have a very low success rate. There simply is no problem with runaway medical malpractice jury verdicts in the U.S. The threat of frivolous medical malpractice lawsuits is pure myth.

On the other hand, there is a very real problem with medical malpractice. It is estimated that up to 98,000 patients die each year from medical malpractice. That is almost twice the number of U.S. soldier deaths during the Vietnam War. There are countless others who survive medical malpractice with horrible and permanent injuries.

One such instance was reported by the Texas Tribune where Emergency Room physicians and staff failed to treat a woman for her very well documented and extremely serious vascular clotting problem. The woman was sent home with a diagnosis of bilateral leg pain. Due to the failure to treat the formerly diagnosed problems, the woman lost both her legs.

In addition to very low caps on medical malpractice claims, Texas has seen fit to give immunity against medical malpractice claims to Emergency Room doctors except in cases of "willful and wanton" behavior. In other words, a patient must basically prove intentional conduct. This is an impossible standard making it near impossible now for patients to recover for what amounts to gross negligence on the part of emergency room doctors.

The potential problem is made most evident in a horribly tragic case reported last week by Fox 40 in Sacramento. In that case, the parents of a two year old girl took her to a Sacramento Emergency Room for treatment for a persistent fever, skin discoloration and weakness. The parents waited 5 hours in the Emergency Room begging and pleading with doctors to see their little girl as her condition deteriorated before their eyes. Their pleas were ignored. As a result, streptococcus A bacteria ravaged her body necessitating the amputation of both feet, her left hand and part of her right hand. Streptococcus A is both common and easily treatable. This tragedy could have been avoided with even slight attention to the little girl or her parents.

Anyone who has ever been to an Emergency Room will understand the implications of providing immunity to Emergency Room doctors. There is the common cry that medical malpractice causes doctors to undertake unnecessary and expensive testing to protect against lawsuits. Both these cases illustrate the opposite. In each case, a little routine testing and attention would have saved these patients from amputations. Now states, Texas in particular, are moving toward a model where there is no pressure at all on doctors to behave professionally and competently leaving all of us at risk each time we seek medical attention.

Voters should keep this reality in mind as cynical and opportunistic politicians seek to gain advantage by touting medical malpractice reform. Keep in mind the two year old girl who now faces a life as a quadruple amputee. Perhaps this is not enough so consider yourself or your family in need of urgent medical services at the ER and whether you believe it is prudent to have a system where doctors and hospitals are not held accountable for their actions.

Then ask yourself who the caps and immunity are meant to serve? It is certainly not the taxpaying public who will ultimately bear the costs of caring for those injured by medical malpractice through Medicare, Medicaid, Social Security Disability and other programs while those truly responsible get a pass.

Collins & Collins, P.C.
Albuquerque Attorneys

In the typical car accident, the insurance company of the party who caused and is liable for damages associated with the accident pays for the repair of the other vehicle involved. The vehicle is examined by an adjuster for the insurance company and a determination is reached as to what damage was caused in the accident and what is to be repaired.

The determination is either to repair the vehicle or to offer compensation for a total loss. Assuming the car can be fixed, often the adjuster will provide a check from the company at the initial examination of the vehicle. Then, the owner of the vehicle can take the car to be repaired at a collision repair shop of his choice.

If the shop determines that there is "hidden" damage, meaning damage that the adjuster could not ascertain at the initial examination, the shop will provide a quote for the insurer and the insurance company will provide additional funds directly to the shop assuming there is no disagreement.

It is important to note, that although the owner may choose the repair shop, most insurers have preferred collision repair shops so that when a supplemental damage estimate is submitted, it is often helpful to have it come from a shop with whom the insurer has a relationship.

When there is significant damage to a vehicle, but the vehicle is worth more repaired than totaled, there is an issue of diminution of value. A vehicle that has been involved in a collision loses some value simply by virtue of the fact that it has been repaired. In theory, a vehicle that suffers body damage should not lose value because it has been fully repaired. However, it usually does. And if there has been significant structural repair, the vehicle may lose significant value.

Unfortunately, getting reimbursed for diminution of value is not easy. If you are the party that caused the accident, although your company will pay to repair the vehicle less your deductible, most insurance contracts do not provide for payment of diminished value. However, in third-party claims, that is where another party caused your damage, the insurer should pay diminished value.

The law in New Mexico does provide for payment of damages for diminution of value based on the general tort law theory that the injured party should be restored to his or her position prior to the accident. The problem is that the injured party generally must prove the diminished value amount, which is usually speculative. It is difficult to know what a vehicle is worth had it not been repaired following an accident.

In these cases it is usually necessary to obtain some professional opinion that there is diminished value and that the diminution is measureable by a reliable method. The result can be a battle of wills and a battle of estimates between the innocent driver and the other driver's insurance company.

Collins & Collins, P.C.
Albuquerque Attorneys

On occasion, a party responsible for an accident and personal injuries will offer to pay for medical expenses related to the injuries. This most often occurs in slip and fall accidents at retail establishments. It is just as common that the party later reneges on the agreement. On the rather rare occasion when the negligent party does pay for expenses, the question of liability and damages is still not necessarily settled.

In most cases involving personal injuries, there is some type of insurance involved. This certainly true of slip and fall accidents Insurance companies are not prone to pay out money on medical expenses or any other damages in the absence of liability on the part of their insured. In case of slip and fall accidents, it seems as common as not that the promise to pay is simply a ploy to get the customer out of the store as quickly as possible. In other types of accidents, there may at first be an admission of liability with a later denial once the full scope of damages is known. In other words, they may accept liability on what they believe to be a small claim which is fact turns out to be a large claim.

This can be both perplexing and frustrating to an injured plaintiff. Yet it is generally allowable under the law. In fact, it is codified in Rule of 409 of both the New Mexico and Federal Rules of Evidence. Rule 409 states; "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by an injury is not admissible to prove liability for the injury."

What this means in practice is that a plaintiff cannot use the payment of medical expenses by the negligent defendant at trial for purposes of proving responsibility or liability for the injuries. The payment of medical expenses may be used at trial for other limited purpose but not for showing liability.

The Rule purports to serve a very valuable purpose. After all, it is said that the law does not want to discourage payment of medical expenses even where those expenses and the related injuries are in dispute. The rule allows the payment of perhaps disputed medical expenses in turn providing for the medical care of an injured party.

On the other hand, it is extremely rare where a defendant, particularly an insurance company, would pay out damages early in a case on disputed claims. Instead, the insurance company would want a release of claims in return for the quick and cheap settlement of disputed claims. This is far more common and occurs with some regularity.

In cases of real personal injuries, a quick and cheap settlement is generally going to be far more advantageous to the insurance company than to the plaintiff. After all, insurance companies and defendants generally are not in the business of philanthropy and they unlikely to offer to pay medical expenses out of the goodness of their hearts. This brings us back to where we started which is insurance companies are not inclined to pay out disputed claims yet the payment of these claims cannot be later used against them at trial.

Collins & Collins, P.C.
Albuquerque Attorneys

The contingency fee arrangement plays a pivotal role in allowing personal injury plaintiffs access to the courthouse. In fact, without contingency fees, injured persons would for the most part have absolutely no recourse for their injuries and damages.

Of course this is what defendants would like to see. This explains the unrelenting attacks on trial lawyers by insurance companies, the Tort Reform movement, the U.S. Chamber of Commerce, and a long list of so-called small business advocacy groups.

The arguments have been so persistent and so loud for so long that many have taken their truth for granted. In fact, the arguments for tort reform and personal injury liability caps are based largely on myth. These myths were hatched and nurtured by these groups who represent corporate America and the insurance industry. The goal is maximize corporate and insurance industry profits with little regard for the safety of the public. In short, the goal is to keep injured persons out of court.

Among the greatest myths, and one that is particularly popular even among the public, is that the greed of trial lawyers is draining small business. Because the myths and misrepresentations are so numerous and profound, it is really hard to rank them in order of deception. However, this myth ranks at or near the top.

The focus of the "greed" argument has been on the contingency fee arrangement. Remarkably, the very conservative Fourth Circuit Court of Appeals shot down this argument in the 2010 case of Pellegrin v. National Union Fire Insurance. The case involved a $18 million auto accident settlement on behalf of Mark Pellegrin who suffered severe and permanent brain injuries, and quadriplegia. His injuries were so great that he can communicate only through facial expressions. He will be totally dependent for life upon the care of others for even basic necessities such as bathing and feeding.

Liability was hard fought by the insurance companies. According to the two plaintiff's attorneys, permanent, each had spent over 1000 hours of time on the case. There was a standard one-third contingency fee arrangement. Over the strong objections of the plaintiff's father and guardian, the district court reduced the fee to a mere 3%.

The plaintiff's were forced to appeal to the 4th Circuit Court of Appeals. The 4th Circuit is notoriously conservative and the plaintiffs were rightfully extremely concerned. In addition, Public Justice became involved fearing that the 4th Circuit would use the case as a platform for a full frontal assault to the contingency fee arrangement.

To the surprise of all on the plaintiff's side, the 4th Circuit reversed the district court's ruling. The Court repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Court noted that this case in particular illustrates the reality that an injured individual would have absolutely no recourse for his or her injuries in a case like this. Clearly, there are very few if any other than corporate plaintiffs that would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

Of course, this is well known to the Tort Reform movement. In their perfect world, the courts would be a playground for only the rich and powerful. And perhaps most importantly for all those skeptics out there, the millions of dollars of lifetime medical care for Mr. Pellegrin and others like him would be left to the taxpayer.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the New Mexico Court of Appeals shows the lengths to which some insurance companies will go to avoid their financial responsibility under their auto insurance policies.

In Gallegos v. Nevada General, the plaintiff was injured in an auto accident with a driver insured by Nevada General. There was no dispute as to the fault of Nevada General's insured. In fact, Nevada General did not dispute liability and paid for the property damage to the plaintiff's vehicle.

Nevada General refused to settle on the personal injury claims disputing medical damages. The plaintiff was forced to file suit. By the time of the suit, the insured driver had disappeared. Fortunately, The plaintiff had named both the insured driver and Nevada General as defendants.

The plaintiff legally served Nevada General. Unable to personally serve the defendant driver, the plaintiff was granted leave by the district court to serve by publication which was done. The defendant driver did not respond and was defaulted in the amount of $20,564.55.

Naturally, Nevada General chose to fight the default electing to engage in lengthy and costly litigation rather than paying the rather meager judgment. In fact, they first initiated a declaratory judgment action in an effort to find that they had no legal obligation under the policy because their insured had disappeared and was not cooperating in the defense. They filed this action without naming the plaintiff who already had a judgment against their insured.

The plaintiff sought to intervene as an interested third party with a clear financial stake in the outcome of the Dec Action. Again, in an effort to evade financial responsibility and ironically at great legal expense, Nevada General fought the intervention of the plaintiff. Remarkably the district court judge agreed with Nevada General stating that the plaintiff had no right to intervene and releasing Nevada General from its contractual obligations under the policy.

Fortunately, the New Mexico Court of Appeals reversed the district court judge. Essentially, the Court stated that a financially interested third party is a necessary party to a dec action like the one initialed by Nevada General. The Court recognized Declaratory Judgment Act and the case-law thereon forbidding adverse affects of a dec action on financially interested parties unnamed in the declaratory judgment action.

In an interesting section of the opinion, the Court stated:

"Insurers commonly use declaratory judgments against their insureds to determine the extent of coverage...Sometimes injured third parties are not even aware of the proceedings. Occasionally, insurers have even gone so far as to advise the insured not to appear in the declaratory actions."

Perhaps more importantly than laying out the rules governing declaratory judgment actions, the Court recognized the principles underlying New Mexico's Mandatory Financial Responsibility Act (MFRA). The MFRA recognizes that liability insurance is made compulsory for the protection of the public. Allowing an insurer to escape responsibility without even involving the injured plaintiff would defeat the purposes of the Act. The Court tacitly recognized the fact that insured drivers are going to disappear on occasion but stated that the injured third party must be allowed to proceed noting that "the insured may lose interest and the injured party has the primary motivation to pursue the claim."

In summary, the Court held that the insured plaintiff must be made a party to the declaratory action seeking to revoke coverage for lack of cooperation by the insured. This certainly provides some relief to injured plaintiffs but it really does not go far enough. The Court should have made clear that insurance carriers will not escape financial responsibility through a dec action whether or not the plaintiff is joined simply by virtue of having lost touch with their insured.

The fact that an insured driver is not available does not change the facts of the case nor should it affect the insurer's financial responsibility. The point is illustrated vividly in this case where Nevada General had already accepted liability for the accident when it paid for the property damage. What could the insured driver possibly contribute to the evaluation of injuries and medical care? The Court basically left open a clear path of relief for those insurers inclined to evade financial responsibility.

Collins & Collins, P.C.
Albuquerque Attorneys

Cancellation of insurance can be devastating to an insured. It seems that Murphy's Law is no more consistent than in the case of insurance cancellation whether it is health, auto, homeowners or any other kind of insurance.

As Murphy dictates, cancellation of a policy is sure to be followed soon by an insurable event such as an illness, auto accident, or in the case of Molina v. Allstate, theft of the insured vehicle.

The New Mexico Court of Appeals case of Molina v. Allstate case involved a longtime insured family, 12 years in fact. It is not clear why but it may be assumed that the Molinas were having some financial difficulty and were unable to pay their full insurance premiums on time.

Instead, the Molinas made a partial payment within the deadline which was communicated to them by Allstate through a renewal letter. The Molinas later paid the remainder after the deadline. The Allstate representative conditionally accepted the payment noting the delinquency. Allstate subsequently denied the late payment and refunded the entire premium to the Molinas noting the cancellation.

Murphy has never been more true to his calling than the Molina case. Allstate generated a refund check on September 13, 2001, and sent a cancellation letter on September 16 enclosing a full refund. Naturally, the Molina's car was stolen on September 16.

The Molina's made a number of arguments for enforcement of the policy primarily noting that Allstate had accepted the partial payment. Allstate responded that the payment was conditionally received subject to cancellation. The Court of Appeals agreed.

The Court cited several authorities for the proposition that "the failure of an insured to pay a renewal premium by the due date results in a lapse of coverage as of the last day of the policy period." There was no disputing that the Molinas payment was late. The Court held that partial payment was a breach of the terms of the insurance contract and was insufficient to prevent a lapse in coverage. The Court applied simple principles of contract law. The contract was unambiguous as to its terms. The Molinas breached the terms of the contract thereby justifying the cancellation of coverage.

The results are certainly harsh for the Molinas, and many others in a similar position. On the other hand, a contract is a contract. Insurance policy holders of every stripe should keep this mind. Insurers are not prone to acts of kindness and generosity in overlooking the terms of their contracts for the benefit of their policy holders. And the law is on their side in cases involving late premiums.

Collins & Collins, P.C.
Albuquerque Attorneys

The Food and Drug Administration has unleashed a new tool for ensuring the regulation of foods and drugs. The FDA has begun using the "Park Doctrine" for the imposition of criminal sanctions against pharmaceutical companies for violations of FDA regulations.

The FDA is targeting the illegal promotion of products for unapproved uses. The practice is known as off-label marketing and is fairly widespread. The FDA has brought back the Park Doctrine after years of dormancy with the realization that civil penalties, no matter how steep, seem to have no deterrent effect on the practice.

The 1970's Supreme Court case of United States v. Park ruled that company executives may be held criminally liable for willful violations of FDA regulations. The criminal penalties typically include fines. However, the FDA has expressed the intention to also seek jail time for those executives responsible for the illegal acts.

The FDA recognizes that the profit motive overcomes the threat of fines, whether criminal or civil. The threat of actual prison time is hoped to be more of a deterrent. Off-label marketing is clearly profit driven and until the profit equation is tipped in favor of public safety, the practice will continue.

These practices are both widespread and widely accepted by pharmaceutical companies and doctors alike. There are numerous ongoing lawsuits, criminal cases and criminal investigations related to these practices. It remains to be seen whether the FDA will hold true to its threat of jail time for guilty executives. It also remains to be seen whether even a threat of a little jail time will tip the profit loss calculation sufficiently for these folks to stop skirting the law.

These cases are interesting for a number of reasons. First and foremost these practices risk the health and safety of patients. Related to this is the fact that both medical industry and the pharmaceutical industry are among the strongest proponents of caps on personal liability awards. They argue that it is trial lawyers that harm the public and threaten public health.

Even President Obama has jumped on the Tort Reform bandwagon suggesting support for medical malpractice caps. There is no disputing that medical malpractice is on the rise, while actual successful medical malpractice claims are on the decline. Neither is there a dispute that wrongful prescription of drugs for financial gain is commonplace. Finally, there is absolutely no disputing that medical malpractice and pharmaceutical company off-label marketing harm the public. So why the continued calls for personal injury liability caps?

Let's start over. It has become a widespread practice of pharmaceutical companies to actively market through financial incentives for cooperating doctors the use of their drugs beyond their FDA approved uses. The practice is called off-label marketing...

Collins & Collins, P.C.
Albuquerque Attorneys

The Associated Press reported that BP has finally settled up on a claim. That's one claim of the 91,000 claims outstanding. According to the report, the claim settled for $10 million. In fact, BP intervened on the part of the claimant to get the settlement approved by Kenneth Feinberg who is in charge of Gulf Coast Claims Facility.

One might assume that this act of generosity and corporate responsibility spells hope to the other 91,000 BP Gulf disaster victims. Not so fast. The settlement was with one of BP's corporate partners according to the Associated Press report. BP will not disclose the identity of the company who receives the $10 million settlement.

Remarkably, the settlement was not reviewed by Kenneth Feinberg. Instead, the settlement was reached between BP and its partner with the Gulf Coast Claims Facility simply signing off on it. Mr. Feinberg's law firm, whose website list among its clients such notable energy and chemicals firms as Exxon, Shell, Conoco, Dow and Dupont, has received $850,000 in fees to administer the fund and who is negotiating a new, and presumably even more financially favorable fee structure.

Those not in a business relationship with BP or the oil industry have fared far worse. About half of the 484,000 claims have been flat denied. There is an appellate review process. Of the 264 appeals processed so far, each and every one has been denied.

There is a bright side to the whole process. Qualified individual victims, which apparently is no easy hurdle, can opt for a quick settlement of $5000. Businesses can opt for a quick $25,000. Naturally, with these settlements, comes a full release from all claims both present and future. Lets see how these settlements turn out for the claimants in 10 years when both foreseen and unforeseen medical conditions begin to manifest.

In a nutshell, while individuals their families, and small businesses alike throughout the Gulf Coast are left with the choice of quick cheap settlement for financial survival, those corporations associated with BP will make out like bandits simply shifting the money from one pocket to another.

Corporations and Tort Reformers have long ago shown their disdain for individual plaintiffs and their lawyers. So it will come as no surprise to anybody when they begin attacking the individual victims and their families for their audacity in seeking compensation for their injuries.

It may come as a surprise, at least to the small businesses of the Gulf Coast, that no cavalry will arrive in their defense. The true colors of Tort Reform shine no more brightly than here. The small business victims along the Gulf Coast would do well not to hold their breath awaiting the advocacy of the U.S. Chamber of Commerce or the many so-called "Small Business" advocacy groups that constantly tout Tort Reform.

Instead, they should brace themselves for the loud and hollow cry for the protection of small business as the suits for individual victims and their families move through the litigation process. These cries will grow louder and louder as the litigation proceeds. There will be no mention of the true small businesses toppling by the hundreds.

Collins & Collins, P.C.
Albuquerque Attorneys