New Mexico Injury Attorney Blog

The decision to admit a loved one into a nursing home is never easy. However, for many families it is a necessary decision, especially if the family member needs around the clock care. When admitting someone into a nursing home, most people think that their loved one will be well cared for--nobody expects that their loved one will experience neglect or abuse at the hands of their caretakers.

However, the numbers tell a different story. Nursing home abuse is becoming an all too common phenomenon, which is troubling as our older population increases and more and more families are faced with the need to admit a loved one into a long-term care facility. In order to protect loved ones from nursing home abuse, it is important to be aware of the types of abuse and the signs that may be present. Nursing home abuse can take many forms, including physical, sexual, and emotional abuse. Other forms of abuse include general neglect and financial fraud and exploitation.

Physical abuse in nursing homes can range from physical injury to the improper use of medication and restraints. Physical abuse is probably the easiest form of nursing home abuse to spot, because there are usually obvious signs of injury present like broken bones, bruising, and cuts.

Emotional abuse in a nursing home can be either in the form of verbal abuse or passive abuse. Verbal abuse includes speaking to an elderly person in a way that causes fear, anxiety, and distress. This can take the form of insults, taunting, or threats. A more passive form of emotional abuse includes caregivers who ignore the patient or subject the patient to long periods of isolation. Even though more difficult to detect, emotional abuse can be extremely damaging to the individual and may leave long lasting emotional scars.

General neglect is a major form of nursing home abuse and can take many forms. In some cases, staff may withhold food or water. In others, the nursing home fails to change bed linens or provide residents with clean clothing. Other nursing homes may fail to monitor patients for preventable illnesses and injuries such as bedsores and viruses. Yet others withhold medication from their patients or fail to administer medication at prescribed intervals.

Financial abuse ranges from slowly stealing small amounts over time to complex operations designed to take entire life savings. Many advocates argue that financial abuse is perhaps the most common form of elder abuse today, but in many cases it may be the most difficult to detect and rectify.

There are obvious and not-so-obvious signs to look for if you suspect that your loved one may be a victim of nursing home abuse:

o Unusual bleeding o Unusual bruising o Wounds, cuts, or sores o Hair loss o Unusual weight loss o Decline in personal hygiene o Burns and abrasions o Soiled, torn bedding o Unresponsiveness, loss of interest o Emotional or physical withdrawal o Infantile or aggressive behavior towards friends and family o Hurting another resident o Loss of personal belongings o Unusual financial transactions o Bickering with staff o Staff refuses access to patient during regular visiting hours o Staff does not leave the room during visit

Friends and family members need to be vigilant for these and other warning signs of nursing home abuse. Understanding the types of abuse and their warning signs is important in putting an end to nursing home abuse and protecting seniors. If you suspect nursing home abuse, it is important to contact a personal injury attorney immediately to ensure the safety of your loved one.

Collins & Collins, P.C.
Albuquerque Attorneys

A few weeks ago, the Florida legislature had before it a bill that would approve a $30.8 million claim against a public hospital for medical negligence. Even though a jury issued the ruling against the hospital, the plaintiff in the case has been forced to get an actual bill passed through the state legislature before collecting any part of the award. Actually collecting an award after a legal determination is often no easy task. In fact, many corporate and insurance interests continue to push for more and new ways to make collection even harder by limiting the rights of injury victims via tort reform.

What is almost always forgotten in these cases is that if the wrongdoer is not required to pay for the consequences of these errors, then the cost is borne by taxpayers through Medicare, Medicaid, Social Security Disability, home healthcare, rehabilitation, vocational training, unemployment benefits and so on. Judicial fairness, therefore, ensures that the public is not required to pay for the negligence of medical professionals.

In the Florida case, a jury found in favor of 14-year-old plaintiff and his parents in a suit alleging that the hospital's negligence during plaintiff's birth resulted in his cerebral palsy. In 2007, a jury awarded the plaintiff $30.8 million, mostly for future 24-hour care and therapy that he will need for the rest of his life which runs into the millions, and more precisely by the jury's estimation, $30.8 million.

The hospital claims that it does not have insurance coverage and that it would have to cut several of its programs to pay the claim. Having no other remedy, the plaintiff and his parents filed a claims bill with the Florida legislature to force the hospital to pay the award. During the four years since the jury verdict, the hospital has done little to try to settle the claim or negotiate with the plaintiff, with one Florida Senator describing its actions as "stiff-arming" the family. Unfortunately, the hospital's conduct in this suit reflects a trend where insurance companies and large private and public entities seek to intimidate plaintiffs in an expensive game of attrition.

The result is that insurance companies, which have actually seen profits rise in recent years, are able to keep more money it their coffers. Instead, the injured family is forced to lean on the public for resources to provide the day-to-day care needed.

Unfortunately, some continue to push for new laws which would shift responsibility away from wrongdoers and toward the public even further.

At the same time that this Florida case was making national news, Tennessee was in the midst of a very different tort -related debate. Emboldened by the passage of the Tennessee Civil Justice Act of 2011 (Act), the business coalition that supported the bill is now pushing for further liability protection for business, insurance, and health care organizations.

The 2011 Act caps punitive damages at $500,000 and non-economic damages, including pain and suffering, at $750,000. Additionally, the Act restricts the claims that can be brought under the state Consumer Protection Act.

Business coalitions in Tennessee now seek to pass a series of bills that would further curtail individuals' rights to recovery in tort claims. The gist of the legislation is to keep injured people out of court by making these extremely costly and risky lawsuits dramatically more so for plaintiffs. One such bill forces a plaintiff to pay the litigation costs of a defendant if the plaintiff refused to settle and wins less that 75% of the settlement offer at trial. A similar bill would compel a party who loses in a motion to dismiss to pay the litigation costs of the winning party.

Proponents of these bills say that they would prevent the mythical frivolous medical malpractice lawsuits. As insurance industry profits continue to soar while medical malpractice claims decline, it is not hard to see the motive or the interests behind the false logic. The fact is these limits simply shift the burden of these injuries to the public and away from the responsible parties and more importantly their insurers who are picking pockets on both sides of the equation.

Collins & Collins, P.C.
Albuquerque Attorneys

Personal injury cases, especially those involving large insurance companies, can become extremely antagonistic. Sometimes, defendants will go to great lengths to avoid paying a personal injury claim. Many insurance companies conduct what has come to be called "disability video surveillance" in the hopes of proving that a plaintiff does not in fact suffer the injuries claimed.

While many individuals may consider being videotaped to be an obvious invasion of privacy, the law in New Mexico and other states allows insurance companies to videotape claimants without their knowledge and use it against them in court as long as they stay within certain limitations. Not only is it legal, it is allowable under the rules of discovery and admissible in court under the rules of evidence.

While private video surveillance of a person in their home or private place of business is not allowed under federal and New Mexico law, videotaping a person in public is perfectly legal. If a person works in a public place, like a restaurant or hotel, they can also be videotaped at work. Often times, plaintiffs are videotaped in their yard performing yard work, gardening or other physical activities. If in a public place, the person being videotaped does not have to be aware of being videotaped and does not have to consent to being videotaped.

However, if the videotape is going to be used in court, the New Mexico and federal rules of evidence place several requirements and limitations to its use. First, a videotape of a plaintiff is admissible in court if it is relevant to the case at hand. Evidence is relevant when it tends to make the facts of a case more or less likely. A video recording of a plaintiff can be relevant if it shows the extent of their injuries, how the injuries impact the plaintiff's daily life, etc. Second, under the rules of evidence, a defendant cannot simply state that there is a video recording of the plaintiff, but must provide the actual recording as evidence. Third, under the "rule of completeness" a party cannot just submit into evidence an edited version of the recording, but must submit the entire recording upon the other party's request.

Keeping this in mind, it is important to be aware of certain issues. Insurance companies rarely do the actual videotaping and surveillance. Instead, they contract local private investigators who are more familiar with the area and with surveillance techniques. In Albuquerque and New Mexico there are a very large number of private investigators who name "insurance fraud surveillance" as one of their specialties. For this reason, persons involved in a personal injury claim are advised to assume that they are being videotaped any time they go out in public.

And keep in mind, the video will not be shown in the most favorable light to the plaintiff so that even seemingly innocuous activities such as carrying groceries may be distorted to make the plaintiff appear dishonest. This should not be taken to mean that one should not carry groceries, do yard work or anything else. It simply means do not say you can't due to your injuries when you can. Exaggerating injuries is never good for a claim.

According to some personal injury attorneys, there are times when a plaintiff is most likely to be videotaped. These include the days and weeks surrounding a requested independent medical examination and during the days and weeks surrounding an interview. Surveillance is also likely in the months before definitions of disability are set to change.

Even though it may seem unfair, the law is that if a plaintiff is in a public place an insurance company or any other type of defendant can place him or her under video surveillance. Keeping this in mind, it is important for personal injury claimants to be aware of their actions and surroundings at all times during this process. These are issues that should be discussed with a personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Malpractice insurance premiums for obstetricians are often higher than for any other medical profession. Perhaps it is because the average payment in an obstetrical medical malpractice suit is around $947,000, more than double the payment for other medical malpractice suits.

CRICO Strategies, a Massachusetts-based medical risk management company, released a study in June 2010 of 800 obstetrics-related malpractice cases between 2005 and 2009. The study focused on the top reasons for medical malpractice claims against obstetricians and identified the risks that lead to these suits.

The study found that the top claims in obstetric malpractice suits involved substandard medical judgment or judgment errors (77%), miscommunication (36%), technical error (26%), and inadequate documentation (26%). Other claims included administrative failures and inadequate supervision.

The study also found that 65% of obstetric medical malpractice cases entail "high severity" injuries, which include the death of the mother, the child or both. The three most common allegations within these cases dealt with delay in treatment of fetal distress, improper performance of vaginal delivery, and improper pregnancy management.

A routine delivery can turn into a life-and-death situation for both mother and child in a matter of seconds. In emergency situations the attending obstetrician and medical team must be aware of countless factors in order to make the correct decision and act accordingly. Unfortunately, healthcare providers sometimes lack all of the pertinent information or are too caught up in managing the constantly changing situation to recognize signs of fetal or maternal distress in time to remedy it.

Communication between team members during critical times of problematic and emergency deliveries is paramount. However, since labor complications are infrequent, many healthcare providers lack the necessary communication skills and structures to make decision-makers aware of all of the factors involved.

The CRICO study found that 43% of claims brought against smaller hospitals involve issues that relate to training and education. At other times, especially during second-stage labor, precise surgical maneuvers and specialized equipment may require extensive training and real-time experience. Medical teams may lack the familiarity and preparation to ensure that no harm is done to the mother or child.

In these cases, most of the time it is not one single incident that causes the problem, but a confluence of small mistakes and oversights that combine to create the crisis situation, according to the study. Often, these small mistakes and lapses in communication are not caught in time to remedy the situation. However, had the proper decisions been made and had communication and training channels been in place, most of these situations could have had a better chance for a favorable outcome.

The study emphasizes that accurate interpretation of data and symptoms, controlled and structured communication, and collective decision-making can make all the differences in most cases. Additionally, electronic fetal monitor (EFM) training and frequent, regular opportunities to apply this training are crucial in avoiding many mistakes that result in malpractice claims. The study also emphasizes the value of contingency plans in situations where time is of the essence. Finally, it encourages prenatal healthcare providers to be alert and communicate with their patients and other members of their team about potential risk factors during pregnancy.

If you or your baby have suffered injuries during birth, it is important to contact an experienced personal injury attorney to help identify the specific causes and help you navigate the complicated process of filing a personal injury claim against your healthcare provider.

Collins & Collins, P.C.
Albuquerque Attorneys

Elective surgery is all surgery not arising from a medical emergency that is scheduled in advance. Elective surgery includes a wide range of procedures, from vision correction to plastic surgery to biopsies. Sometimes, these surgeries do not live up to the patient's expectations and unhappy patients wonder if they have a medical malpractice claim against the doctor or healthcare center.

Generally patients who are unhappy with the results of elective surgery do not have a claim against the doctor or healthcare professional. Under New Mexico law, doctors must obtain a patient's informed consent to any treatment or operation. When patients opt for elective surgeries, they are usually required to sign informed consent forms in advance.

Consent forms advise the patient of the treatment, alternatives, and the potential risks of treatment. For elective surgery, consent forms often warn that even simple surgeries carry inherent risks, and that not all patients will get the results that they hope for. By signing a consent form for an elective surgery a patient is acknowledging that the result of their surgery may not live up to their expectations.

Additionally, for elective surgery, most doctors and clinics will not guarantee results. Doctors and staff may inform the patient of success rates and the probability of success, but they rarely guarantee what a particular outcome will be. In the rare case that a doctor or hospital signs a written guarantee of a certain result, a patient may have a claim based on breach of contract, but not medical malpractice unless the medical services provided fall below the standard of care. In sum, in the absence of a written guarantee, patients who are unhappy with the results of an elective surgery may have little legal recourse.

There are some nuances of which to be aware. Without a written warranty, a patient will generally not have a claim against a doctor if their laser eye surgery did not give them 20/20 vision or their nose is not perfectly straight after a rhinoplasty. However, a patient may have a claim if they believe there was medical malpractice involved or they were harmed by the surgery.

Medical malpractice involves a negligent act or omission by a healthcare professional. To be negligent, the person or institution must have acted in a way that falls below the accepted standard of treatment. A forgotten surgical sponge or an infection due to a leaking implant would fall within this category. If at any point the health care professionals act in a way that falls below accepted medical standards, there will be a case for malpractice. This includes the entire medical relationship, from failure to obtain informed consent and giving vital pre-operative instructions to surgical procedures to post-operative care.

It is important to understand the difference between not being happy with a result and actually being injured by the negligence of a doctor or hospital. If there is medical malpractice involved, it is also important to keep in mind that New Mexico has a three-year statute of limitations for most medical malpractice cases. However, there are several issues that may shorten the statute of limitations for many malpractice cases. For instance, claims against governmental entities including state, local and county hospitals or clinics have a Tort Claims Notice deadline that runs in 90 days from the date of the alleged negligence.

Due to the unique deadlines associated with medical malpractice claims, it is imperative to contact an experienced personal injury attorney as soon as possible once you suspect malpractice.

Collins & Collins, P.C.
Albuquerque Attorneys

Assumption of risk is an often-used defense against personal injury tort claims involving a dangerous recreational activity or sport. These activities include things like skiing, snowboarding, bungee jumping, horseback riding, or skydiving. Several sports are also considered dangerous, like baseball, hockey, and football among a number of others. Perhaps the signature dangerous recreational activity in New Mexico and the Rocky Mountains is snowskiing/snowboarding.

The idea behind assumption of risk is that despite knowing the inherent perils involved in the activity, an individual voluntarily engaged in it and got hurt as a result. In New Mexico, and most states, the signature of a waiver for most dangerous recreational activities is typically required to prove that the plaintiff voluntarily assumed the inherent risks of engaging in the activity. However, under the New Mexico Ski Safety Act (Act), skiers and snowboarders assume the risks of skiing as a matter of law, without having to sign a waiver.

Under the Act skiers assume the inherent dangers of skiing so long as those dangers are "obvious and necessary." The Act offers several examples of obvious and necessary risks in skiing, including forest growth and debris, terrain variations, surface and subsurface conditions, bare spots, and plainly visible and marked pole lines, lift towers, and snowmaking equipment. The Act places the responsibility of knowing their own experience level and skiing within it, keeping a safe rate of speed at all times, heeding posted warnings, and skiing within designated areas solely on each individual skier.

For the Act to apply, the injury had to have happened while the plaintiff was (1) "participating in the sport of skiing," (2) in the designated skiing area. This does not mean that the ski area operator is immune to all tort claims that originate in the ski area. The Act imposes a number of duties on the ski area operator. If the operator breaches any of the duties it owes to skiers, assumption of risk cannot be used as a defense and the facility may be found liable for negligence.

Among the duties owed to skiers, the Act lists clearly and visibly marking snowmaking and maintenance equipment, entrances to slopes, difficulty level of each slope, hazards, and obstacles. Operators must also maintain one or more trail boards designating entrances to trails and slopes and whether those trails and slopes are open or closed. The Act also requires operators to conspicuously place warning signs designating maintenance activity on the trail boards and at the entrance of the trail or slope. Ski area operators are additionally required to have ski patrol personnel who are trained in first aid, winter rescue, toboggan handling, and evacuation of stalled aerial ski lifts. Finally, ski area operators must maintain ski lifts in safe working condition.

Under the Act, a person who is injured skiing from a collision with a tree or a visibly marked vehicle will be found to have assumed the risk of this kind of a collision. Similarly, an inexperienced skier who injures herself by going too fast on a slope above her experience level will also be found to have assumed the risk. However, assumption of risk will not be a valid defense for a ski area operator who failed to maintain a ski lift properly or failed to mark maintenance equipment on a slope.

For other dangerous activities where assumption of risk is not codified into New Mexico law, even if an individual signed a waiver, there is no assumption of risk when the defendant created unreasonably hazardous conditions. This will depend on the circumstances and the particular activity.

If you have suffered serious injuries as a result of unreasonable and unexpected hazards while engaged in a "dangerous" recreational activity, it is generally advisable to have an experienced personal injury attorney review your case.

Collins & Collins, P.C.
Albuquerque Attorneys

A typical, healthy infant begins to breathe immediately after birth. If one minute has gone by and a regular breathing pattern has not been established, the child may be suffering from asphyxia, or a lack of oxygen. Asphyxia affects approximately 5% of newborn infants.

After delivery, medical personnel monitor a child's vital signs to insure proper oxygen delivery. These signs include: the child's color, breathing pattern, heart rate, muscle tone and response to stimulation. Asphyxia may be present if an infant's tongue is not pink, if there is any gasping or lack of breathing, if heart beats fall below 100 beats per minute, if there is minimal movement or limpness or if there is minimal response or no response to stimulation.

Asphyxia can be resolved in most infants with resuscitation; however, asphyxia can result in
hypoxic-ischemic encephalopathy (HIE). HIE is brain damage that occurs in infants either before, during or shortly after birth from asphyxia. It occurs most among infants that are full-term, and is a leading cause of impairment which can include motor difficulties, developmental delays, epilepsy and cognitive deficits.

Risk factors for HIE include, but are not limited to:

• placental abruption, when the placenta detaches from the uterus before birth


• prolapsed umbilical cord, when the cord descends through the cervix before the fetus


• maternal hypotension, or low blood pressure


• uterine rupture, including intrauterine hemorrhage


• maternal or fetal cardiac complications


• birth trauma, when injury occurs from instruments or other force used during delivery


• medical negligence

HIE can be detected immediately after birth and diagnosed by neuro-imaging procedures, like an MRI or CT scan. Most likely, however, it is a parent, caregiver or medical professional that notices signs of HIE, like delayed development or impaired motor control as the child ages.

While HIE is usually sudden and unexpected, some preventative measures can be taken to help eliminate the risk. Proper labor management and early awareness of fetal distress by medical personnel may provide some protection. Attention to risk factors can also lead to better preparation for possible complications.

More importantly, expectant parents should go into the delivery process well informed. This includes understanding the importance of fetal monitoring equipment, insuring that fully qualified and properly trained physicians are available during delivery, and knowing patient rights, particularly when it comes to decision-making and second opinions.

In those cases where HIE results from medical negligence, it is important to immediately seek the advice of an experienced personal injury attorney. There are important and unique deadlines in medical malpractice claims that must not be missed.

Collins & Collins, P.C.
Albuquerque Attorneys

In birth injury cases, a lack of oxygen is the most common cause of damage to an infant's brain. Oxygen deprivation can come in the form of asphyxia, a blockage to the airways, or hypoxia, a blockage of oxygen-rich blood to the brain. While a lack of oxygen can occur for many reasons, one cause may be due to a common medical practice: immediate cord clamping (ICC).

ICC generally occurs right after an infant's delivery. The umbilical cord that unites mother and child is clamped then cut, typically within 30 seconds after the baby has emerged. The process is thought to prevent hemorrhaging in the mother and allow the infant to be quickly transferred to a resuscitation station for further evaluation.

Recent studies suggest that clamping and/or cutting the cord too soon may lead to massive blood loss into the placenta. This reduces the nutrient-rich blood and oxygen supply a child needs when taking its first breaths. Certain infants are more susceptible to problems from this decrease in oxygen and blood, leading to a possibility of brain hemorrhage or breathing difficulties. Both of these risks can result in brain damage and a wide range of long-term disabilities.

Some experts, including the World Health Organization, recommend that three minutes should pass before cutting the umbilical cord. This will allow blood from the placenta to flow to and nourish the newborn, while the baby establishes a proper breathing pattern and starts to depend on its own bodily systems. It is advised that all signs of pulsation within the cord should cease before the cord is clamped and cut.

Experts believe the amount of blood transferred through the cord may amount to 30-50% of an infant's eventual blood volume. Studies show that infants have a built-in reflex system that will shut off the flow of blood from the cord once they have received the optimal amount. And, this nutrient-rich blood could impact the health of the infant long past birth, reducing the chance of iron deficiency in children as old as 8 months.

Traditional treatment of an infant displaying a lack of oxygen has been to re-oxygenate their systems. Unfortunately, they may be in need of blood volume replacement instead, something that is typically not addressed. Interestingly, rates of oxygen deprivation are much lower in deliveries involving professional midwives. Often, midwives delay the cutting of the umbilical cord until delivery of the placenta.

Dr. George Morley, MB, ChB, FACOG, a board certified OB/GYN states emphatically that "Perinatal and neonatal care is less successful in saving brains than saving lives." He also believes that the cause of oxygen deprivation in newborns has been misdiagnosed, leading to no real decline in cerebral palsy rates, despite intensive interventions.

While this is just one theory involving infant brain damage, expectant parent should discuss ICC with their medical providers. Many physicians may simply be following current trends in obstetric medicine by practicing ICC, without being fully aware of the possible risks this procedure may present.

If your baby has suffered a birth injury, including brain injury, it is important to contact an experienced personal injury attorney right away. There are unique medical malpractice statutes of limitation and other deadlines.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico Dram Shop laws were enacted to assign liability to persons or establishments who serve alcohol to a visibly intoxicated person. If the intoxicated individual later causes personal injury or property damage because of their intoxication--say by driving drunk--the establishment can be found liable for serving them alcohol. Under the New Mexico Dram Shop Liability Act, plaintiffs have to prove that the establishment served alcohol to a patron when it was "reasonably apparent" to the establishment that the patron was intoxicated.

Proving a dram shop claim can be difficult. In the past, defendant establishments have tried to avoid liability in many ways. Some defendants have claimed that if the specific server could not be identified so that there was no way to prove that it was reasonably apparent to that server that the patron was intoxicated. In other cases, there is no direct evidence to prove that it was "reasonably apparent" that the patron was intoxicated because there were no independent witnesses and establishment employees will not testify that they knew the patron was intoxicated.

In Gutierrez v. Meteor Monument, the New Mexico Supreme Court recently made it significantly easier to bring a dram shop claim against an establishment. Gutierrez held that identification of the particular server is not essential to a dram shop case and circumstantial evidence alone is sufficient to prove that it was "reasonably apparent" that a patron was intoxicated at the time he or she was served alcohol.

The underlying suit in Gutierrez dealt with a patron who consumed several beers and malt liquor before he crashed his car into a motorcycle an hour later, ultimately resulting in the motorcycle rider's death. The rider's estate and family successfully sued the patron and Meteor, the establishment where he had been drinking prior to the crash. The defendant establishment appealed and the New Mexico Court of Appeals reversed the dram shop verdict against it, holding that since there was no evidence of the specific employee who served the patron, there was no evidence to support the finding that the patron's intoxication was "reasonably apparent" to that server.

The New Mexico Supreme Court disagreed. The Court held that the "reasonably apparent" standard for dram shop liability is an objective standard that does not depend on the personal, individual perception of any specific server. On the contrary, the "reasonably apparent" standard applies to any server who should have known that the customer was intoxicated because the intoxication would have been "visible, evident, and easily observed." The Court continued by explaining that if the "reasonably apparent" standard were a subjective one, there would be very few successful dram shop claims because employees and establishments would be able to avoid liability by testifying that they did not think that the patron was intoxicated.

Next, the Court went on to discuss circumstantial evidence acceptable under this objective standard to prove apparent intoxication at the time of service. While testimony of other witnesses present at the time is widely accepted as circumstantial evidence to prove apparent intoxication, in many cases, this testimony doesn't exist. Many establishments argue that this should be the only circumstantial evidence admissible. The Court in Gutierrez, however, listed several other sources of evidence including the patron's own testimony as to how many drinks he or she consumed, how long the patron was present at the establishment, the observations of police officers at the accident scene, and the results of Breathalyzer tests. In Gutierrez, the court discussed the fact that the patron was known to be an alcoholic by the defendant's employees, that he was a regular customer of the defendant, and that he was usually visibly intoxicated by early afternoon. The Court also discussed the observations of police officers at the time of the accident, one hour after Defendant served the patron his last drink, as well as the results of a subsequent sobriety test and blood alcohol level tests.

This decision by the New Mexico Supreme Court is likely to have an impact on personal injury and wrongful death claims based on dram shop laws. By making it clear that the identity of a particular server is not necessary for a successful claim, and by expanding the allowable circumstantial evidence to prove apparent intoxication, the Court has made it easier for personal injury victims to bring a dram shop claim against a negligent establishment.

If you or loved one has been injured or harmed by a drunk driver, and that driver was highly intoxicated, the first question should be how is it that the driver reached that state of intoxication? An experienced personal injury attorney will be able to assist in answering that question which may very well lead to a dram shop claim.

Collins & Collins, P.C.
Albuquerque Attorneys

In many cases the decision to enter a nursing home is made under extremely difficult conditions. When signing admission contracts patients and their families are often in a state of extreme vulnerability, where their decision-making ability is not optimal. In these high-stress situations, patients often do not consider the consequences of the terms to which they are agreeing.

In many cases, nursing home admission documents contain mandatory arbitration clauses. At a time when all that matters is obtaining the required care, patients don't realize that they are giving up their right to file a personal injury lawsuit against the nursing home if that nursing home commits negligence or abuse.

The New Mexico Court of Appeals recently issued a ruling recognizing the unequal bargaining power of patients seeking admission to a nursing home. In Strausberg v. Laurel Healthcare Providers, the Court of Appeals held that nursing homes that sought to enforce arbitration agreements had the burden of proving that the arbitration agreement is not unconscionable.

The underlying suit in Strausberg alleged negligence on the part of a nursing home for care the Plaintiff received after back surgery. While under the nursing home's care, the Plaintiff claims that she developed ulcers and an infection that could have been prevented had she been given the proper care. The district court, however, dismissed Plaintiff's complaint and granted the nursing home's motion to compel arbitration because the Plaintiff had signed an arbitration agreement as a condition to being admitted into the nursing home for rehabilitative care.

The New Mexico Court of Appeals reversed the decision to dismiss the case and compel arbitration, finding that the district court made an error in placing the burden of proving that the arbitration agreement was unenforceable on the Plaintiff. The Court stated that the burden was on the nursing home to show that the arbitration clause was not unconscionable.

The Court began by stating that even though arbitration agreements are recognized under federal and New Mexico law, an arbitration agreement may be unenforceable if it is substantively or procedurally unconscionable. An agreement is substantively unconscionable when its terms unreasonably benefit one of the parties over the other(s). An agreement where there is extremely unequal bargaining power between the parties and one party has no real choice is procedurally unconscionable.

In most commercial transaction cases the party challenging the validity of an arbitration agreement must prove that the agreement is unconscionable. However, the Court in Strausberg indicated that in a case involving nursing homes seeking to enforce arbitration agreements that are a condition for admission, the nursing home, and not the patient, must prove that the agreement is enforceable.

The Court differentiated the case before it from regular commercial transactions because the people seeking care in a nursing home are in a state of critical necessity and are vulnerable to being taken advantage of. For this reason, a person may sign an arbitration agreement when trying to gain admission into a nursing home that they would never have signed had they not been in a high-stress situation.

Even though this recent decision may seem like good news to patients and their families, it is important to take notice that most nursing home arbitration agreements in New Mexico are found to be enforceable. Keeping this in mind, when faced with the need to seek admission to a nursing home, patients and family members are strongly urged not sign arbitration agreements.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, and other states for that matter, Indian tribes and pueblos retain sovereign immunity. This generally means that suits against tribes and pueblos, including personal injury and wrongful death claims, must be brought in tribal court. However, under the Indian Gaming Compact, tribes have given up sovereign immunity for suits involving personal injury and property damage caused by enterprises authorized under the Compact. This means that Indian casino patrons can bring personal injury suits in state court.

New Mexico state courts have traditionally been largely deferential when it came to sovereign immunity claims. Generally, guests of restaurants and gas stations adjacent to casinos had difficulty keeping their suits in state district court due to claims of sovereign immunity. In its recent ruling in Mendoza v. Tamaya Enterprises, however, the New Mexico Supreme Court has considerably restricted sovereign immunity as it relates to gaming establishments and liquor laws.

The suit in Mendoza v. Tamaya Enterprises alleged that the Tamaya Resort was liable for the wrongful death of two intoxicated guests killed after leaving a wedding reception. The Defendant Resort claimed that New Mexico state courts did not have jurisdiction over the case because the Plaintiffs were not in the resort to gamble, and therefore its actions were governed instead by the Pueblo Liquor Ordinance. Under the Ordinance, tribal courts claim exclusive jurisdiction.

The New Mexico Supreme Court disagreed, consistent with the New Mexico Court of Appeals earlier ruling, and has allowed the suit to proceed in state court. Even though there was no evidence that the deceased were in the resort for gaming purposes, the Court held that state courts have jurisdiction over their wrongful death claims. With this holding, the Court cleared up a long-standing gray area, and made it clear that regardless of whether the injury or property damage had any connection to gaming, state courts have jurisdiction if the injury or damage was caused by the actions of a gaming establishment authorized under the Indian Gaming Compact.

Finding that state courts did have jurisdiction over the case, the Court proceeded to discuss what kind of a suit can be brought in state court under the circumstances. The Court found that the Plaintiffs had a common law dram shop third party and patron claim against the resort. New Mexico dram shop laws place liability on a person or establishment who serves alcohol to an individual who they knew or should have known was intoxicated.

The Court went on to define common law third party dram shop claims, common law patron claims, and the standards to prove each claim in state courts. In New Mexico, a common law third party dram shop claim is present when a defendant serves alcohol to an individual who is visibly intoxicated and that individual later injures a third party. Citing important policy considerations, the New Mexico Supreme Court also recognized a common law patron claim, where the intoxicated patron himself can bring a personal injury and wrongful death suit against the establishment that over-served him or her.


In order to harmonize this case with previous rulings and existent laws, the Court clarified the elements and standards for both types of claims. In a third party dram shop claim, the third party must prove that the person or business was negligent and that this negligence caused the third party's damages or injuries. In a patron claim, the patron must prove that the server or business "acted in gross negligence and in reckless disregard" of the patron's safety and that these actions caused the damages and injury. In other words, patrons must show a higher level of culpability by the defendant.

This recent ruling has significantly cleared up several uncertainties in cases involving Indian casinos and has increased the legal options for guests injured in these places. This does not necessarily mean that all cases involving Indian casinos can be brought in state court. However, at the very least hopefully it will prompt establishments to be more vigilant in protecting all of their guests.

Dram shop cases can be complex and challenging. This is doubly so when dealing with an Indian Casinos. An experienced personal injury attorney will be able to lead you through this difficult and sometimes frustrating process of bringing claims against an Indian Casino.

Collins & Collins, P.C.
Albuquerque Attorneys