New Mexico Injury Attorney Blog

It is not uncommon for neighbors, friends, family or others to help each other out in a pinch. Often times, the help comes in the form of work around the house. This may include home improvement, cleaning, and sometimes just helping with some heavy lifting. It is also relatively common that personal injuries are suffered by the well intentioned neighbor, friend or family member. The good news is that there may be insurance coverage that covers the injuries. The bad news is you have to bring a claim and sometimes a suit against the homeowner to gain the benefit of the coverage.

This of course can be a sticky point among neighbors, friends and family. Not everyone takes kindly to being sued. In addition, the injured party may just feel guilty about bringing a claim. However, in cases of serious injury, this may be the only option for the injured person to recover for medical costs and other damages. In many cases, especially in today's healthcare climate, it may be the only way to even get essential medical treatment.

Both the homeowner and the injured person should understand that the claim is against the homeowner's insurance policy, if there is one. Most homeowners will have homeowner's coverage. In the case of homes under a mortgage, they must have homeowner's coverage. In those cases where there is not coverage, then there really are some uncomfortable realities. First, to recover, the injured person must sue the homeowner alone. Second, if the homeowner does not have insurance coverage, then the homeowner probably has significant financial issues that suggest that he or she may be judgment proof (i.e. you can't get blood out of turnip).

When there is homeowner's coverage, the coverage limits are generally at least $100,000. Many homeowner's carry significantly more than this. However, these limits are generally sufficient. There are cases that involved severe, permanent, or catastrophic injuries, and on occasion there will be a wrongful death where these limits would be insufficient. This gets us back to the last paragraph where the homeowner may simply lack the financial resources to cover injuries and damages above and beyond the $100,000 limits.

In those cases where the insurance coverage limits are sufficient to cover all damages, the homeowner will not suffer any personal financial hardship associated with the claim. There may be an increase in premiums in some cases. And in cases where there have been a number of claims on the policy, there is the risk of cancellation of coverage. However, this increase in premiums or possible future cancellation is likely far less harmful or burdensome on the homeowner than uncompensated physical injuries or worse, untreated physical injuries.

This situation can be hard to understand on both sides of the equation. The homeowner may feel financially threatened, which they generally are not. Likewise, the injured person may be afraid that a claim will harm their neighbor, friend or family member. In most cases, a little education can alleviate concerns on both sides.

Collins & Collins, P.C.
Albuquerque Attorneys

Companies are not only liable for their own acts that cause injuries to others, but may also be liable for the acts of their employees under the doctrine of respondeat superior. This legal concept is derived from the Latin term meaning "let the master answer." This doctrine imputes civil liability to any employer whose employee negligently causes a personal injury to a third party while acting within the scope of employment. The worker must be both an employee and acting within the scope of employment. As simple as this may seem, neither element is necessarily clear.

In any lawsuit imputing liability to an employer, the court will make two inquiries. First, the court will inquire whether the employee who caused the injury was actually an employee as opposed to an independent contractor. An employer is typically not liable for the acts of independent contractors. However, if the employer exercises significant control over the worker's hours, tasks location, and wages and so on, an employee/employer relationship is likely to be found. In some cases where an independent contractor relationship is suggested, the court may also look to who provides the tools and/or transportation for the worker

Second, the court will inquire whether the employee was acting within the scope of employment when he injured the plaintiff. New Mexico jury instructions require that the employee's acts were both "fairly and naturally incidental to the employer's business assigned to the employee" and the employee was "engaged in the employer's business with the view of furthering the employer's interest." In order to trigger the doctrine of respondeat superior, the employee's conduct must not have arisen from some "external, independent and personal motive." This issue often arises under the "coming and going" rules where employees are not within the scope of employment while in route to or from work.

The determination of an employee relationship is often critical to a personal injury claim. The issue comes up in many different situations. Perhaps the most common are auto accidents. The "coming and going rule" will not hold an employer liable for an auto accident caused by an employee on the way to or from work in most cases. On the other hand, an employee who is clearly within the scope of employment when the accident occurs will trigger liability on the employer.

The difficult areas fall between these two extremes. For instance, an employee may be delivering goods for the employer, take a detour for some personal business or more likely recreation, and while on the detour cause the accident. This can be a difficult issue. In other cases, the employee may be traveling to or from work. Typically, this would be barred by the "coming and going rule." However, there are exceptions that may turn on who provides the transportation, who provides the routes of travel, whether employer tasks are conducted along the way, or the employee is afraid from home on a remote worksite.

In other words, the cases can get a little tricky and will typically suggest the involvement of an experienced personal injury attorney. Why does it matter? Typically, an employee will have far fewer financial resources than an employer. In fact, many employees may simply be judgment proof, meaning there is little to collect even in a successful lawsuit. An injured party's recovery may be entirely dependent upon whether respondeat superior is found.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent verdict against a nursing home corporation in West Virginia has stirred a renewed push for tort reform and limits on medical malpractice awards. A West Virginia jury awarded over $90 million to the family of a patient that died within 3 weeks of admission to the facility. Rather than outrage at the continuing and pervasive neglect of our parents and grandparents in nursing homes, corporate America through the guise of citizen groups have used the verdict as a call for further restrictions on the rights of injured patients to recover for injuries suffered at the hands of profit driven policies that inevitably lead to tragedy each and every day throughout the country.

The facts of the West Virginia case are not dissimilar to countless other cases of nursing home abuse and neglect. The 87 year old patient was placed in the care of the Manor Care Heartland facility. It was to be a short-term stay as the family awaited admission to another facility. It was argued and accepted by the jury that nursing home staff immediately confined the patient to a wheelchair despite her ability to walk. This is not uncommon for reasons that became obvious to the jury.

Testimony of the facility's staff showed that the facility was severely understaffed. It was shown that it was impossible to care for the number of patients adequately at the staffing levels that existed at the facility. What's the solution to a short-handed staff? Immobilize the patients. This is done in nursing homes throughout the country in a variety of forms. Often, the patient is simply confined to a wheelchair. Other times, with less compliant patients, the facilities will resort to medication to keep the patients immobile. This practice of chemical restraints comes in many forms, some subtle, some not.

Unfortunately, an immobilized patient will suffer all varieties of health related issues related to the lack of mobility. Worst, as here, an immobile patient seemingly content in his or her resting state become invisible to the overwhelmed staff. As the saying goes, the squeaky wheel gets the grease. When the patient does not make a peep, and the facilities are understaffed in order to enhance profits, the inevitable result is neglect. In the West Virginia case, the neglect was so severe that the patient was denied even basic necessities such as food and water. The result, in her brief 3 week stay which was intended to be temporary, the poor woman died of gross neglect.

Immediately, the cries went out from all variety of corporate driven groups with deceptive names suggesting citizen outrage for the reform of the jury system. Naturally, corporations want to limit their financial responsibility for their misdeeds. This ranges from product liability, to oil spills, to corporate owned hospitals, to nursing homes and on and on. These cynically named so-called citizens groups argue that the jury system is causing untold damage to the American way. They argue that corporations should be allowed to police themselves. After all, the corporation will suffer enough from the loss of business associated with their negligent ways. Other financial deterrents such as bothersome jury verdicts are completely unnecessary.

It is interesting to look at just the very recent past in the nursing home industry to understand why this is such an insincere, cynical and profit driven position. In fact, even these seemingly astronomical verdicts have little impact on industry practices since the simple fact remains that less staff means more profits. Last year, a California jury awarded $677 million on a class action nursing home case. Closer to home, a New Mexico jury awarded a $54 million in a nursing home neglect case. That case involved a woman who slowly bled to death in her bed while staff failed to provide even basic care such as periodically checking her vital signs. Then the nursing home created false records and concealed evidence, including the bloody sheets on which she died, in order to cover up the wrongful death.

Naturally, concerned citizen groups around the country flocked in each of the cases to the defense of the nursing homes right to behave negligently while maintaining profits. After all, what citizen wouldn't value the profits of nursing home corporations and their insurance carriers more than the well-being and care of elder family members and loved ones? Despite the minor inconvenience to patients associated with gross neglect I know that I sleep better knowing that nursing home companies are maintaining the bottom line. I for one would not want the health and well-being of my family to in any way intrude on those profits. As a "concerned citizen," that would be un-American.

Collins & Collins, P.C.
Albuquerque Attorneys

If a doctor did not diagnose your medical condition and you suffered harm because of the lack of a diagnosis, you may have a claim against the doctor for medical malpractice. If you think you have a claim against a doctor for medical malpractice, contact a medical malpractice lawyer as soon as possible.

A medical malpractice claim may arise against a doctor if the doctor acted outside of the ordinary standard of care. In other words, if the doctor did not act in the same way that another doctor would act in the same situation, the doctor may have violated the duty of care.

A medical malpractice claim for a doctor's failure to diagnose a medical illness or condition may be successful if the doctor failed to order tests that are routine for a patient displaying your symptoms. In addition, if the doctor had the results from a multitude of tests that indicated your condition, but the doctor was unable to make the proper diagnosis, you may have a successful case against the doctor for medical malpractice. A misdiagnosis of a condition may also qualify as medical malpractice.

All this seems pretty simple. Now for the bad news. To be successful in a medical malpractice claim for a doctor's failure to diagnosis a medical condition, the plaintiff must hire a medical professional to testify against the negligent doctor . The expert witness must have the same expertise as the defendant, and should be able to explain what an average doctor would have done in the same situation. For example, if the defendant is a neurologist, the plaintiff's expert witness should also be a neurologist to establish what the standard level of care is for a neurologist.

There a two major and related hurdles to this threshold requirement. First, few New Mexico doctors are willing to testify against their local colleagues. As such, it is typically necessary to hire an out of state expert. This leads to the second problem. Out of state medical experts are extremely expensive.

Even armed with a costly expert, proving that a doctor's actions fell below the standard of care is not always as easy as a patient or his family may expect. In fact, it is quite difficult. In New Mexico, most medical malpractice claims must go before the Medical Review Panel prior to filing suit. The Panel often finds at this early stage that there was no negligence. This result is often the outcome even when the patient or his attorneys have expended great costs on a medical expert to prove the doctor fell below the standard of care. Though a bad outcome at the Medical Review Panel does not prevent a patient from filing suit, it will definitely cause some concern for the attorney who is looking at countless hours and very costly litigation ahead.

Even if the plaintiff establishes that the defendant breached the standard level of care owed to a patient to diagnose a medical condition, the plaintiff must still show that the failure to diagnose caused the plaintiff harm. If the plaintiff became severely ill, suffered permanent damage or died because of the doctor's failure to diagnose the medical condition, the resulting harm caused by the doctor will be easier to prove. However, even in these seemingly straightforward cases, the injured patient may have suffered a host of preexisting medical conditions that contributed to the damages. The doctor and/or his insurance company by argue that these override the medical negligence and should preclude or greatly reduce recovery.

In short, these cases are very difficult and expensive to pursue. The frivolous medical malpractice lawsuit is largely a myth created by proponents (i.e. insurance companies and corporate interests) of tort reform. Doctors, hospitals and most importantly their insurance carriers fight these cases very hard. They fight the clearly baseless cases. And generally they fight the meritorious cases just as hard. A brief review of the news illustrates this reality when medical malpractice has reached record highs while medical malpractice lawsuits continue to plummet.

Sadly, though medical malpractice is quite pervasive, very few injured patients will be compensated for their injuries. This applies equally to what most would regard as a simple matter of showing that the doctor failed to diagnose a serious and obvious medical condition. Until patients/voters recognize the cynical myths created by the Tort Reform movement, medical malpractice will continue to rise, insurance companies will continue to profit on the backs of both doctors and patients, and innocent patients will continue to be harmed in mass. Unfortunately, few voters recognize this until they become an injured patient.

Collins & Collins, P.C.
Albuquerque Attorneys