New Mexico Injury Attorney Blog

Thousands of Americans contract sexually transmitted disease every year. It seems that many view them simply as the cost of doing business. Most victims of STD's do little or nothing to seek any kind of justice or compensation for what can result in death in some cases and in many more a lifetime of suffering, medical treatment and medical costs.

There are others that take a more proactive approach like the recent California case of Behr v. Redmond. The female plaintiff in that case won a verdict of $$6,753,600 which included $2.75 million in punitive damages.

The case was appealed disputing the jury's high award of damages. and the compensatory damage award of $4,003,600 was found to be excessive due to the lack of relationship between the award for future medical damages and the actual future medical damages established at trial. However, the punitive damage award was upheld in its entirety.

Behr's complaint alleged battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, fraud by concealment, and fraud by misrepresentation. Essentially, Behr alleged that Redmond had sex with her knowing that he had herpes. Interestingly, Redmond did after several months into the relationship admit having herpes and the two continued to have sex. However, it was established that Redmond assured Behr that she could not catch the disease while it was dormant. These latter assurances served the basis for the fraudulent misrepresenations claims.

The caveat emptor (buyer beware) approach to the victim of STD's is in the distant past. Sex torts are now treated much like any other tort with principles of negligence, recklessness, fraud, battery and so on. Likewise they are equally compensable.

Some courts have even taken on a paternalistic posture recognizing the severe risks to society of STD's particularly in light of the AIDS epidemic. It seems that juries are like-minded in their disdain for irresponsible, reckless and dangerous sexual practices that endanger the health and safety of unknowing victims. This is made evident by some very large verdicts coming down in these cases, much like the one in Behr v. Redmond.

Collins & Collins, P.C.
Albuquerque Attorneys

After a accident resulting in personal injuries, an insurance company will conduct an investigation of the medical treatment you received as a result of the accident. They do this to determine their responsibility for your injuries and other damages and to limit their liability to anything that falls outside the scope of the accident.

To begin, a claims adjuster or other insurance personnel will typically request a recorded statement. This statement may or may not be taken under oath, depending on whether or not there are questions surrounding liability or policy coverage. It is highly inadvisable in a case with significant injuries and damages to provide the interview in the absence of an attorney. There are situations where the interview is inadvisable even with an attorney present.

In the event that the interview is conducted, the adjuster will ask general questions surrounding the accident, as well as more detailed questions surrounding the medical care you have received and any prior accidents or injuries. You will then be asked to make a statement that what you have said is true and correct to the best of your knowledge.

The adjuster will want to obtain your personal medical information directly from your health care providers. In order for them to do this, Federal law requires that they have your signed authorization. Again, the decision of whether and when to provide a release to the insurance company is something that should be carefully considered with the advice of an attorney.

In most cases, the adjuster will only request documents directly related to the accident. However, it is not uncommon for an insurance company to request medical records prior to the accident, as these prior records may outline pre-existing conditions that could lead to an reduction in liability. As such, the scope of the release may also become an issue.

The insurance company will be attempting through a review of your medical records to determine whether or not the injuries alleged in the accident actually occurred. They may dispute the existence of any accident related injuries. A outright denial of injuries is most common in soft-tissue injuries despite the well established medical literature on the seriousness and duration of soft-tissue injuries.

The insurance company will also attempt to determine if the injuries were pre-existing in nature. Pre-existing injuries may reduce and in some circumstances negate a claim for damages. On the other hand, pre-existing injuries may be greatly aggravated by an accident. It is up to the injured party, his or her attorney and doctors to prove damages or aggravation of damages.

There are some insurance companies that will try to tie injuries suffered in the accident to even the most trivial prior medical issues. These same companies will often deny the existence of even very serious injuries. A good place to start to determine whether you are dealing with one of these companies is the JD Power rankings of insurance companies. You can also search for the insurance company and bad faith insurance practices to determine what to expect when dealing with the insurance company in your case.

There are many insurance companies that deal fairly and responsibly with accident victims. Even with these companies, the issues can be rather complex and difficult suggesting the need for legal counsel. There are others that simply do not play fair. These insurance companies can be difficult to deal with even for an experienced personal injury attorney. Unfortunately, a party acting on his or her own behalf stands little if any chance of a fair settlement with these firms.

Collins & Collins, P.C.
Albuquerque Attorneys

Though New Mexico is a no-fault divorce state, there is nothing stopping one spouse from suing the other spouse for intentional torts. In fact, the general rule in New Mexico is that a spouse may sue another spouse for intentional torts even when they occurred during the marriage.

No-fault divorce protects the parties and the courts from hearing all the lurid details that led to the divorce. However, there are acts that will lead to personal injury claims above and beyond the typical assertions of wrongdoing and blame that fall within the scope of no-fault divorce.

The New Mexico Court of Appeals addressed the issue of spousal tort liability for intentional torts in Papatheofanis v. Allen. In that case, the husband was awarded $257,500 in compensatory damages and punitive damages for the wife's intentional torts of fraud, breach of fiduciary duty, malicious abuse of process, and defamation.

The torts committed by Allen are not particularly uncommon in divorce proceedings. Most notable and promising for those spouses that have suffered at the hands of a malicious and dishonest spouse were the malicious abuse of process and defamation claims. It is not clear what percentage of the jury verdict was related to these claims but these were in my opinion the most reprehensible and the most symptomatic of high conflict divorce and child custody disputes.

Allen filed false domestic abuse allegations stating that he had battered Allen's mother. She also reported Papatheofanis to his employer falsely accusing him of embezzlement and fraud. Fortunately, Papatheofanis was able to disprove both allegations and was cleared of all charges. This is often much easier said than done particularly when dealing with a spouse that is willing to commit perjury.

Sadly, such false allegations are not uncommon in high conflict divorce. False reports of domestic violence for gains in child custody are perhaps the most common. However, there are those that will not stop there making false allegations of sexual abuse of the children for advantage in the custody fight and sometimes just purely out of malice.

As in this case, defamation can have potentially devastating employment consequences since a conviction for fraud, embezzlement or other crimes of dishonesty will act as a bar to many jobs. A finding of domestic violence has terrible and permanent consequences for the alleged offender from lifetimes bars on gun ownership to loss of employment opportunities, and for New Mexico often most damaging, loss of security clearances.

A finding of sexual abuse is absolutely catastrophic with lifetime sex offender registration and mandatory minimum prison sentences for most offenses. These cases, often regardless of the factual basis, are prosecuted very aggressively. The innocent accused is put in a literal life and death struggle with a very heavy and difficult burden to overcome. It is hard to imagine a more malicious and devastating act than false allegations of sexual abuse.

There are far too many that engage in this kind of outrageous conduct. It is good to see that the New Mexico Courts have given the wrongfully accused a remedy, including punitive damages. Hopefully, cases such as Papatheofanis v. Allen act as a deterrent to what seems to be a growingly popular tactical approach to divorce and child custody disputes.

Collins & Collins, P.C.
Albuquerque Attorneys

The basis behind the immunity for ER doctors in Texas (and other states following suit) is that medical malpractice claims have made it difficult to attract doctors to emergency rooms across Texas. It is not clear if the objective is to attract competent doctors.

What might be expected for the level of care in emergency rooms as ER doctors are given immunity from their negligent acts? Those doctors that cannot or will not practice medicine safely and competently may well be attracted to the ER. This serves neither the medical profession or the patient. Neither does it serve the healthcare system or taxpaying public as a whole.

The brunt of any negligence leading to serious and long-lasting injury to patients will be borne by Medicaid, Medicare and Social Security Disability. The costs of ER negligence will simply be shifted from the doctor, the hospital and most importantly their insurance carrier to the public at large.

Rather than raise the standards across the medical profession and encourage all doctors to meet higher standards of patient safety, Texas and others have chosen to create a safe haven for those doctors who cannot or will not meet the minimum levels of professional competence.

In the abstract, medical malpractice reform sounds plausible, almost necessary. In practice, these types of measures create unacceptable risks to patients and the public. They will also rightfully undermine the public's confidence in the medical profession. After all, why would a doctor need immunity to protect the doctor from his or her own negligence and incompetence?

It would perhaps not be so bad if Texas were alone in pushing these measures. But many other states, including New Mexico have proposed similar measures. In fact, New Mexico House Bill 372 was introduced this session to give immunity to emergency responders for all but gross negligence.

Rest assured, the future will bring more expansive bills to take the immunity from the scene of the accident through the ER. Once that is done, it will not be long before there will be bills suggesting industry wide immunity from medical malpractice claims. Many states have already placed severely inadequate caps on medical malpractice lawsuits.

Be safe out there! An accident may be the least of your worries. Your life and family may be at risk. But you should can take comfort in knowing your doctor, the hospital, their insurance carriers and all of their respective incomes will be fully protected. And in the end, isn't that what matters most?

Collins & Collins, P.C.
Albuquerque Attorneys

As the New Mexico Legislature considers making texting while driving a crime through House Bill 197, the auto industry ramps up the technology to allow drivers to do just that. And much, much more!

Ford in particular seems to be leading the way on mobile communications technology but others will surely follow. Ford Sync will allow drivers to sync up with all their communications and social media apps. Drivers will be able to check their texts messages, email, calendars, and newsfeeds. Presumably, there will be the ability to respond as well including updating the driver's schedule.

With each and every new feature will come new and dangerously escalating levels of distraction. Long gone are the days when the worst driving distractions were lost french fries and lipstick. Now all the frustration and confusion of the smartphone, the computer, cable television, channel surfing, social media and more will be brought to the dashboard of our and our fellow driver's cars.

Rest assured, these features will not come cheap. Auto manufacturers are not, or least their mission is not in the business of losing money. They will profit at the expense of the safety of drivers. Unfortunately, those that choose not to jump at this technology will still be exposed to the hazards of those that do.

In the end, the auto industry will make money. And with will surely be a significant rise in auto accidents caused by the distractions, they will scream for tort reform and liability limits when cars start piling up on our roads. They will scream for market freedom to allow drivers to adapt the technology and the right of industry to profit from the technology. Some may both support auto industry's right to profit with the technology while also making it a crime to use it.

On the other hand will be those hapless drivers who thought the technology was safe and legal. It was all built right into the dashboard for goodness sake? It will be those same hapless drivers who at best are charged criminally for their behavior and at worst endanger their own lives and the lives of others as they twitter their way down the road.

Collins & Collins, P.C.
Albuquerque Attorneys

When involved in a car accident, among the first task often undertaken is an investigation of the other driver's driving record. It is thought that this evidence will be used at trial to show that the driver was negligent in causing the accident.

In fact, the rules of evidence do not allow the use of prior accidents to show that the driver was negligent in causing the accident. In other words, you cannot use prior negligent behavior to show that the person acted in a similarly negligent manner in causing the accident.

However, the prior accidents and prior driving history may be used for other purposes. Perhaps among the most important and most common use of prior bad driving is to prove a negligent entrustment claim. A negligent entrustment claim essentially states that the defendant was negligent in knowingly allowing a negligent driver to drive the defendant's vehicle.

Negligent entrustment claims can come up in a host of circumstances spanning every situation where an owner of a vehicle allows a negligent driver to drive his or her vehicle. Among the most common are cases where employers allow employees with bad driving records to operate company vehicles.

In fact, these were the facts in the 1991 New Mexico Court of Appeals case of DeMatteo v. Simon. In that case, the defendant construction company had allowed a driver with a history of auto accidents and traffic violations to operate its company vehicles. Interestingly, the company acknowledged that that it knew of his many traffic offenses and a number of auto accidents. However, the company denied full knowledge of the employee's rather atrocious driving history stating that he would not have been hired had it been known.

Though the company denied full knowledge of the driver's history, it was clear that the company both had the capacity to conduct a full driving background check and failed to do so. The court stated that the company's knowledge of the employee's questionable driving practices and its failure to investigate further before entrusting him with a company vehicle showed an "utter indifference for the safety of others" providing a possible basis for punitive damages against the company.

In the end, the employee's bad driving history was not admissible to show that he was driving poorly at the time of the accident. However, it was admitted to show negligent entrustment which proved far more costly to the company than a simple showing of negligent driving.

Now for the bad news. The case has significance far beyond the facts of the case. As stated, negligent entrustment can arise in a wide variety of situations including allowing teenage family members to drive the family vehicle. Maybe a conversation with the teenage drivers in the house is in order. Sometimes parents must use every tool in their arsenal. Now parents can cite to New Mexico case-law and the possibility of devastating punitive damage awards to support their arguments for safe driving habits.

Collins & Collins, P.C.
Albuquerque Attorneys

The argument for medical malpractice reform centers around the high costs of medical malpractice insurance premiums associated with frivolous lawsuits. To support this argument, there was first the creation of the myth of frivolous medical malpractice lawsuits. To bring the argument home, an additional myth was created.

The second myth is that a reduction in medical malpractice litigation will bring down the medical malpractice insurance premiums for doctors. In fact, the number of medical malpractice lawsuits has been in sharp decline over the last ten years. Medical malpractice claims are brought to successful conclusion at trial in about 3% of claims.

Logic would dictate that doctors should be seeing significant savings in medical malpractice insurance premiums. These savings would then be passed on to patients and taxpayers through lower costs of medical care. Lets not hold our breath as we wait for the insurance industry to pass these savings on.

The point is seen most clearly in California where there state regulators are investigating dramatically inflated premiums. In an aptly name article "Calif regulator: Malpractice insurance too pricey" from the Silicon Valley Mercury News, there were some interesting but not too surprising findings on the topic.

The article states that on average, California insurers pay out around 23% of premiums for claims. This seems like a pretty respectable profit, perhaps even a little high. Medical malpractice insurance carriers on the other hand cannot live with a meager 400% margin. According to the article, the largest medical malpractice carrier, The Doctors Company, spends only 10% of premiums on claims. Some other providers pay as little as 2% of premiums on claims.

Where do savings from the highly successful 30 year Tort Reform campaign go? According to California regulators, they certainly do not go to doctors, patients or taxpayers. They go entirely to the insurance industry, which really was the point all along.

You have to hand it to the insurance industry. Its public relations and marketing efforts at distorting the reality of medical malpractice costs are remarkable. Its business model is beyond compare. After all, who can question the business savvy of an industry working off 90-98% margins while successfully crying hardship and distress every dollar of profit along the way.

Collins & Collins, P.C.
Albuquerque Attorneys

The affects of Jordan v. Allstate, Romero v. Progressive and Progressive v. Weed Warrior are already being seen in previously settled uninsured and underinsured auto accident claims in New Mexico.

In short, as addressed previously, acceptance by an insured of uninsured and underinsured coverage below liability policy limits constitutes a rejection of coverage. It is well established in New Mexico that a rejection of uninsured and underinsured coverage must be in writing,and attached to the policy.

As addressed in several prior posts, uninsured and underinsured motorists coverage is extremely important for motorists. This particularly the case in New Mexico which has the highest rate of uninsured motorists in the country with countless more carrying $25,000 minimum liability coverage.

As a result, a driver in an auto accident in New Mexico will in all likelihood be dealing with a negligent driver who has either no insurance or very little insurance. The injuries suffered in car accidents often require medical expenses greatly in excess of the $25,000 minimum liability limits required by law. As such, the $25,000 minimums will often not even cover medical expenses much less other damages such as lost wages which are almost universally present in serious automobile accidents.

The cases of Jordan, Romero and Weed Warriors have corrected a fairly common problem. Drivers often accepted uninsured and underinsured limits below the liability limits. Some did so knowingly with the sole purpose of saving a few dollars a month on premiums. Many others were convinced to reject UM/UIM coverage. In fact, uninsured and uninsured coverage is perhaps the most economical and essential coverage provided for drivers.

As a result, there were and will continue to be those companies that will try to convince drivers that uninsured and underinsured coverage is not necessary and a waste of money. These cases will not stop this practice going forward. But they do address past problems. And they do acceptance of uninsured and underinsured covers be in writing, signed by the insured, and attached to the policies. Hopefully, this will trigger the suspicions of drivers. After all, why would the law require all these hurdles for an insurance company if it were not in the best interests of the driver to have this coverage?

As a result of the cases, some responsible insurance companies are taking a proactive stance actually sending out letters to all drivers that have made uninsured and underinsured claims in the past. The letters alert the drivers of possible rights to additional coverage on their past claims. It is safe to say that many insurance companies will not behave as responsibly.

Not only will some companies not send out these letters, when they do receive a claim, they will fight tooth and nail as they fight all claims on their policies. I will not name those companies here, but a quick review of JD Power's annual rating of auto insurance providers will give you a pretty good idea of what to expect from your insurance company.

And to show that I am not totally hostile against all insurance companies, only those that are abusive, dishonest or otherwise fail to honor their responsibilities, I would like to recognize own insurance provider of over 25 years, State Farm, as being both in the top 5 of the JD Power list and among those companies sending out letters to their customers to notify them of their rights.

Collins & Collins, P.C.
Albuquerque Attorneys