New Mexico Injury Attorney Blog

Approximately 4 million women give birth in the U.S. each year, and more than 60% of them receive epidural anesthesia during labor. Epidural anesthesia is a process where pain management medication is injected near the nerves in the mother's lower back. And, while this process may ease pain and discomfort for the mother, it can in some circumstances create a greater risk of injury to the baby.

Epidural anesthesia has been found to increase a mother's temperature. While the link between epidural anesthesia and fevers is not well understood, one belief is that an inflammation response is triggered, generally in the fetal membranes and placenta. Other studies suggest that epidural anesthesia may decrease the mother's ability to dissipate heat at a time when she is expending energy due to the labor process.

Dr. Scott Segal at Tufts Medical Center in Boston, a teaching hospital, explains that this rise in temperature is not seen with other types of pain control or drug-free labor. Nor is there an effective, safe method for preventing maternal fever from epidural. He also cites that maternal fever in general is known to complicate up to 1/3 of all deliveries.

According to a recent study published in Pediatrics, a possible link has been found between birth injuries and women with elevated temperatures who received epidural anesthesia. The study suggests the higher the mother's temperature, the greater the likelihood the infant would experience problems at birth. These problems included breathing difficulties, poor muscle tone and even seizures.

The study documented that 19.2% of the women who received an epidural developed temperatures above 100.4 degrees. If the fever was over 101 degrees, the infant had a 2-6 fold increase in the risk for problems. Interestingly, the study revealed there was no difference in an infant's outcome for women who did not develop a fever after epidural injection versus those who did not have an epidural at all.

Many infants who experienced problems after a delivery involving a maternal fever overcame the issues associated shortly after birth; however, others did not. Maternal fever has been linked to infant brain injury resulting in cerebral palsy, muscle atrophy and learning disabilities.

And, while other factors could be at work, namely, intrauterine infections, maternal fever is certainly a risk factor that should be discussed with one's physician before delivery. Even if a mother has no plans to rely on epidural anesthesia, plans can change once labor sets in. It is best to know the risks ahead of time without the added pressure of making decisions while in the grips of a painful contraction.

These are all issues that should be discussed between an expecting mother and her physician. Only through understanding can a patient make informed decisions in the midst of delivery.

Collins & Collins, P.C.
Albuquerque Attorneys

A claimant bringing a personal injury claim on his own behalf typically has no idea what to expect. In most cases, it is the claimant's first experience with attempting to get payment from an insurer for injuries and other damages that the person has suffered due to the negligence of its insured.

Some claimants are surprised that the insurance adjuster doesn't believe that they are truly injured and accept their word as to the damages incurred and the negative impact that the injury has had on their lives. The reality of the case is that the insurance adjuster is trained to be skeptical and to question every fact. Adjusters receive bonuses based on their level of skepticism and low payments that generally follow their evaluation and negotiation of a claim. Quite frankly, after defending every aspect of his or her treatment, time off work, inability to perform household tasks, the usual claimant tires and just wants to end the process, accepting whatever the adjuster's "final offer" may be.

Many insurance companies utilize a computer program known as "Collosus" that evaluates claims and determines the range of value for a particular claim. The computer program arrives at values for claims by comparing the data input by the adjuster with information relating to similar claims contained in its database. The information contained in the database is largely a summary of settlements and judgments for similar cases in the locale of the claim. It contains information regarding the impact that particular injuries have on an average person taking into consideration the severity of the injury, length of time of the usual recovery and usual cost of medical treatment for the particular injury. The adjusters attempt to resolve claims within the range of value determined by Collosus, preferably at the lower end. If the adjuster wants to exceed the value, most must get approval.

In theory, a program that calculates claims' values based on a significant amount of relevant information for the location in which the claimant resides could be helpful to adjusters. Similarly, both defense and plaintiff attorneys perform research regarding verdicts or settlements involving similar cases, preferably within their state, so as to assist in their own valuation of claims. An essential duty for an attorney is to provide his clients with a realistic outcome so that the client can make an informed decision regarding their case when faced with the question of acceptance or rejection of a settlement offer and whether to proceed to trial or not.

The difficulty with a program such as Collosus is that it does not take into consideration the impact that an injury has on an individual. Injuries affect people differently. One person may be particularly impacted by constant back pain and the limitations placed on their activities, while another person may not be seriously impacted. Some have a higher threshold for pain and some may not care that he or she has restrictions on what he can do physically. However, a person who exercised daily prior to an accident but can no longer go to the gym can be particularly affected, especially when exercise was a source of stress relief and enjoyment. A new mother with a baby is particularly impacted when she can no longer lift or carry her baby because of the aggravation of pain caused in her back.

When faced with an insurer that employs Collosus to value claims, it is extremely important for the claimant or his attorney, to provide information to the insurance adjuster that differentiates his claim from the "norm" and average value. By providing information that adds real value to a claim based on an individual's particular situation, Collosus can't be followed because the claim should no longer fit in the rubric of average. If the adjuster refuses to consider facts that distinguish the claim, the claimant then can choose to move forward with litigation knowing that a judge or jury will consider personal factors that impact an individual.

Every case, every insurer, and every adjuster are different. In all but the simplest and smallest cases, it is important to seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Center for Disease Control (CDC), cerebral palsy is the most common motor disability among children in the US. In a number of cases, cerebral palsy is caused by a doctor's negligent failure to perform a C-section when conditions deem it necessary.

Juries around the country have recognized that failure to perform a timely C-section when medically necessary is a significant deviation from reasonable standards of care. As a result they often return sizeable medical malpractice verdicts in favor of affected children and families.

The CDC estimates that one in every 303 children in the US suffers from cerebral palsy. Cerebral palsy is the name for a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy greatly affects a child's development and quality of life. The severity of symptoms can range from moderate to severe, and many affected children require life-long care.

Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. Most children display symptoms of cerebral palsy by age three. Around 20% of cerebral palsy cases are attributed to brain damage during birth. In many of these situations, the brain damage that leads to cerebral palsy is caused by lack of oxygen to the brain, known as fetal hypoxia. According to the CDC, fetal hypoxia accounts for roughly 10% of cases of cerebral palsy. Even though only a small percentage of all cerebral palsy cases can be prevented by the timely performance of a C-section, failure to do so can have devastating results for a child and family.

In a number of cases, possible brain damage from lack of oxygen to the brain can be prevented by the timely performance of a C-section. Situations when a C-section becomes medically necessary include when: (1) the baby does not progress through the birth canal and is deprived of oxygen, (2) the umbilical cord is wrapped around the child's neck and the problem cannot be corrected, and (3) prolonged attempts to induce labor have not been effective and the child remains in the birth canal for too long.

When these problems develop, medical professionals often have mere minutes to react before irreversible damage is done to mother and child. There are several ways that healthcare providers can monitor the child for signs of distress that can lead to deprivation of oxygen to the brain. Fetal hypoxia is often accompanied by a change in the baby's heart rate, which should be carefully monitored by healthcare professionals if there are any signs of complications during birth or if there are risk factors associated with the pregnancy.

Unless doctors and nurses are well trained and vigilant, and the hospital has standard procedures in place, these warning signs may go unnoticed and precious time may be lost. In some situations, there is no way to identify signs of distress in time. However, in a large number of cases, the signs are obvious and the physician or medical team simply does not address the need for a C- section in a speedy manner, causing injury and even death to the child. In these cases, doctors and hospitals deviate from the medical standard of care and may be deemed negligent under civil law.

As indicated, medical negligence is not always or even the most common cause of cerebral palsy. However, if your child suffers from cerebral palsy and you suspect medical negligence, it is important to make the determination as early as possible. An experienced personal injury attorney can help you do just that.

Collins & Collins, P.C.
Albuquerque Attorneys

A failure to diagnose a medical condition can be catastrophic to a patient and his or her family. Failure to diagnose occurs in a variety of situation with a variety of medical conditions. A failure to diagnose is not always the result of medical negligence. Even when there is arguably some medical negligence, a medical malpractice lawsuit may be difficult to pursue. However, where the missed diagnosis results in serious injury or death to the patient, then at minimum, the case should be reviewed for possible medical malpractice.

The failure to diagnose cancer is not uncommon. Nor does it necessarily indicate medical malpractice. There are many cases where it most certainly does. A recent medical malpractice verdict in New York provides a good example. In that case, early testing revealed a lump in the breast of a 50 year old mother of 3. The doctor decided to do no further testing concluding that it was not malignant. Instead, he simply instructed her to come back in a year. Upon return 16 months later, the lump had grown to the size of a golf ball.

After extensive radiation and chemotherapy, the cancer went into remission. The injured plaintiff filed suit and a verdict of $15 million was entered against the doctor. Unfortunately, the cancer has now spread to the patient's bones according to news reports. So the seemingly large award may be a hollow victory for the plaintiff and her family.

Had the proper testing been done upon discovery of the original lump, the story would likely be far different for both the patient and the doctor. A simple follow up test to confirm the doctor's erroneous conclusion that the tumor was not malignant would have avoided the spread of the cancer, the pain and suffering of the patient, the massive medical expense associated with treating the cancer, the lawsuit and what may end in the death of an innocent patient.

Unfortunately, this fact situation is far too common. It defies logic why a trained medical doctor at would not seek additional testing upon finding a lump in female patient's breast. But it happens, not just with breast cancer but all varieties of other cancers and other potentially life-threatening diseases.

For patients and families, cases such as these should serve as notice that where the medical profession refuses to act, the patient must be proactive and persistent. This is hard when dealing with medical doctors. We all want to assume that they are infallible particularly when our health or the health of a loved one is involved. But this is far from the truth.

According to the Institute of Medicine, medical errors kill up to 98,000 patients per year. In fact, this study is from 1999 and the problem apparently has grown worse, not better over the years. So it is critical that patients protect themselves. If the doctor will not act to protect the patient, then insist on it to the point of rudeness if necessary. If this doesn't work, find another doctor. Do not assume that the doctor is always right!

And if you are reading this too late to have prevented harm related to a failure to diagnose, contact an experienced personal injury attorney immediately. There are important deadlines that must be met in these cases that when missed will bar your claims completely.

Collins & Collins, P.C.
Albuquerque Attorneys

Cesarean section (c-section) deliveries are the most common surgical procedure performed on women, according to the March of Dimes. In fact, about 30% of the 1.4 million live births in the United States are delivered by c-section, often because it is medically necessary to protect the life of the mother or the child.

Doctors have often thought that pre-term delivery, delivery before 37 weeks of pregnancy, by C-section might give a fetus with a slower than average growth-rate the best chance at normal development. These babies were considered too fragile to endure the vaginal birth process without physical trauma or other complications. A C-section was viewed as a protective measure, in which it was believed that treatment for growth issues could be better dealt with after delivery through an Intensive Care Unit.

However, recent research conducted by the Society for Maternal-Fetal Medicine (SMFM) challenged the widely held belief that a C-section delivery poses no health risks for a pre-term baby who is small in gestational age. The study found that higher rates of respiratory distress were noted in these infants delivered pre-term by C-section. In fact, they were found to be 30% more likely to have breathing issues than pre-term infants born vaginally.

Unfortunately, there may be more repercussions to pre-term C-sections than just breathing issues. C-sections performed even at 39 weeks can be problematic for an infant's brain, which is still developing. Thus, pre-term babies delivered by C-section may also face lifelong physical and developmental problems, including motor control issues like cerebral palsy.

What may have been seen as a protective measure for pre-term infants with growth issues may now end up being an improper medical recommendation. The SMFM study suggests that the best outcome for a slow growth rate fetus might be continued gestation in the mother's womb, particularly if there is no imminent danger to the mother or child.

These are all matters that should be discussed with the expecting mother's doctor. This should be a thorough discussion of all the risks and benefits of a pre-term C-section. If a doctor is recommending a pre-term C-section, then the expecting mother at a minimum should ask for a second opinion.

The doctor's office can be an intimidating place. Patients are often reluctant to ask questions. Many do not want to second guess the doctor. However, asking a question and understanding the risks of a procedure is not second guessing. It is simply a part of good patient care. And honestly, with the risks of a newborn at risks, if the doctor is offended and sees it as second guessing, then the patient needs a new doctor.

A decision that could have life-long devastating consequences to the child and the family should not be entered lightly. Expecting mothers like all patients must take steps to protect themselves. After all doctors are not perfect. Most good doctors will appreciate the patient's involvement. Those that do not are those same doctors that at times remind the medical profession of its imperfections with avoidable medical malpractice lawsuits.

Collins & Collins, P.C.
Albuquerque Attorneys

Most people are aware of the concept of a statute of limitations period which is a time frame in which a claim must be brought or is lost forever. There are many subtleties that must be understood as well and it is these that cause injured people the most problems.

There are different limitations periods for different types of claims. For example, in New Mexico, there is a three-year statute of limitations period for a personal injury claim. Personal injury claims encompass claims in which a person is injured due to a car accident, slip and fall, medical negligence or malpractice and any other type injury to the person that is because of some other person or entity's negligence.

However, that three-year limitation period has some conditions. The three years applies to claims against a person or entity that is not a public entity. Public entities are municipalities, counties and states, and their agencies. There are also numerous hospitals that are public entities, some obvious which are tied to a state university, such as the University of New Mexico Hospital, and some not, with names that do not immediately suggest that the entity is public.

In cases involving public entities, the statute of limitations for bringing a personal injury claim is two years, with a notice requirement that obligates the injured party to notify the potential at-fault public entity within 90 days for a personal injury, or six months if the claim is for a wrongful death.

To further complicate the matter, in New Mexico there is a statute that is applicable to injury claims against some doctors or healthcare providers, but not all. The Medical Malpractice Act (Act), NMSA 1978, Sections 41-5-1 to -29 (1976 as amended through 2008) is stated to be a patient's compensation fund, that provides excess insurance for medical negligence claims worth more than $200,000, excluding punitive damages.

To qualify as a "qualified healthcare provider" under the Act, the doctor must pay a surcharge and have insurance coverage of $200,000 per occurrence or deposit that amount with the Superintendent of Insurance. Pursuant to the statute covering these healthcare providers, any claim must be brought against the doctor or healthcare provider within three years of the date of the negligent act.

This differs signficantly from the general statute of limitations for personal injury actions which requires the action be brought within three years from when the plaintiff "discovers, or reasonably should discover" the existence of his or her claim. The difficulty with the claim against the qualified healthcare provider is that the potential plaintiff might not even know of the existence of his claim until three years AFTER the date of the negligent act. Under the statute, the claim is barred and the potential plaintiff cannot bring his claim.

While there is no good answer to what is arguably completely unfair to a party who has been injured through medical negligence, the best advice is to consult an experienced personal injury attorney immediately when one has a concern that he or she might have suffered harm through medical negligence.

An attorney can quickly determine if the doctor or healthcare provider is a "qualified healthcare provider" under the Act, and file an immediate application with the Medical Review Commission to evaluate the claim. The filing of the panel application stops the running of the statute until the panel makes a decision. After the decision, the claimant can determine if pursuit of the claim is worthwhile or not.

Collins & Collins, P.C.
Albuquerque Attorneys

Babies bring a whole new level of adventure into the lives of their loved ones. Yet, they also bring countless concerns, particularly when they fail to reach conventional milestones, like rolling over, crawling or walking. Combine these with more significant issues as a child ages, like continued difficulty lifting one's head, physical stiffness or an inability to sit without support and the possibility of a motor disability may exist.

Cerebral palsy (CP) is the most common motor disability among children. According to Centers for Disease Control and Prevention, Cerebral Palsy occurs in 1 out of every 303 eight-year-old U.S. children, and approximately 10,000 babies will develop CP each year. It is 1.2 times more frequent in males than females, and the incident rate is significantly lower in Hispanics versus Caucasian or African American children.

Cerebral Palsy is a condition that affects the coordination between the brain and the body's muscles, thus impacting a child's ability to move and maintain posture. It is typically caused when the brain develops abnormally or is damaged during development.

Depending on the area and extent of damage, a child can have a very mild condition which results in awkwardness or clumsiness. More moderate cases may involve involuntary movement, speech problems or muscle tightness. And, more severe occurrences could include sight, hearing or speech impairment, difficulty swallowing, incontinence or mental retardation.

If the damage occurs before birth, it is considered "congenital" cerebral palsy, affecting nearly 70% of the children diagnosed with cerebral palsy. Some potential causes before birth involve infections contracted by the mother, a lack of blood supply and genetic conditions.

If the damage occurs during birth, it is still defined as "congenital"; however, this type only affects about 20% of those with a formal cerebral palsy diagnosis. During birth, a child can have problems from premature birth, delivery complications, having low birth weight or experiencing severe jaundice.

When symptoms appear after birth, typically after 28 days, it is considered "acquired" cerebral palsy. This type affects the remaining 10% diagnosed. Situations that can develop during this time include, a lack of oxygen, bleeding of the brain, or even a brain injury from a fall, car accident or physical abuse.

Of the many ways that a child may suffer cerebral palsy, medical malpractice is only one cause of the condition. The estimates of medical negligence related cerebral palsy vary wildly from 4% to 25%. However, even one case of medical malpractice leading to sever and permanent damage to a child is too many.

If you believe your child has suffered cerebral palsy as a result of medical negligence, you should seek the assistance of an experienced personal injury attorney as soon as possible to insure that your rights and the rights of your child are fully protected.

Collins & Collins, P.C.
Albuquerque Attorneys