New Mexico Injury Attorney Blog

An article in the National Journal last year reported that medical mistakes cost the nation's health care system tens of billions of dollars every year. Unfortunately, instead of getting serious about eliminating those errors, many tort reform advocates continue to argue for a change in personal injury laws, including caps on awards for medical malpractice. Far from offering robust healthcare savings, a look at the numbers and malpractice rates shows that the insurance companies are the only real winners in tort reform.

It is no secret that the healthcare industry spends billions of dollars in medical malpractice suits every year. According to Pamela Villarreal of the National Center for Policy Analysis between 18 to 45 cents of every dollar spent on healthcare in the U.S. is related to a mistake made by a healthcare provider. Jill Van Den Bos and colleagues at Milliman's Denver Health Practice reported that in 2008, cases involving post-surgery infections cost the industry $3.36 billion. In the same year, bedsores, a completely preventable condition, cost the industry $3.27 billion.

Considering the staggering costs to patients and medical providers, one might assume that there would be universal focus on making medical care safer. Not so. Instead, certain interest groups are actually working to reduce the degree to which medical providers are held accountable for their errors. New Mexico, for example, places several limitations on damages in civil cases. Under the Medical Malpractice Act (Act), NMSA 1978, there is a $600,000 cap for damages for medical malpractice. The cap excludes past medical costs and benefits, but the Act prohibits monetary damages for future medical expenses, which are paid as they are incurred. The Act also limits an individual health care provider's (or more accurately his or her insurance company) personal liability to $200,000.

Insurance companies argue that tort reform in general and caps on damages in particular are necessary to reduce healthcare costs, lower insurance premiums for medical professionals, and promote improvement in care so that doctors are not engaging in "defensive medicine." Countless studies show that this is not the case. On the contrary, healthcare costs are rising, healthcare insurance premiums are higher, and there is little progress in preventing medical mistakes and malpractice. This is all in spite, or maybe because of, caps on damages.

There is ample evidence to support the proposition that medical malpractice caps have little to no impact on healthcare costs. A 2010 Robert Wood Johnson Study revealed that medical malpractice insurance premiums account for less than 2% of all healthcare costs. According to the same study, there would be very little impact on healthcare costs even if the most stringent tort reform measures were put in place. The 2011 report by Public Citizen, "A Failed Experiment," which studied the effect of Texas' $250,000 cap on non-economic damages, revealed that since the cap has been law, Medicare costs have risen faster in Texas than in the rest of the country and health insurance premiums have risen above the national average.

Similarly, damage caps have not lowered insurance premiums for medical professionals. A National Center for Policy Analysis study was unable to find a correlation between damage caps and malpractice insurance premiums. Other studies have found that premiums rise in response to a broad range of economic factors, not the amount of malpractice payments. Yet others have shown that insurance premiums rise at a higher rate in states with caps than in states without caps. What all of this research shows is that if anything, caps have a negative effect on the cost of insurance premiums for malpractice coverage.

What may be even more frightening is that caps on damages may eliminate the incentive to improve health care in general. There are several studies of hospitals and healthcare centers that have instituted successful prevention programs after being forced to pay out a large malpractice suit. The possibility of an expensive medical malpractice suit has incentivized providers to invest in programs that eliminate errors. Without this incentive, medical providers will have fewer reasons to seek to improve quality and avoid mistakes, resulting in an increased number of deaths and injuries that could have been avoided. As it stands now, it is estimated that up to 98,000 patients each year die as a result of medical malpractice.

As states continue to enact caps on medical malpractice damages, the returns are meager. Contrary to what tort reformers promise, healthcare is getting costlier and less safe for the average person. The only real winners in all of this are the insurance companies.

Related Reading:

• Emergency Room & Emergency Responder Immunity: Safe Haven for Negligence and Incompetence?


• Medical Malpractice Reform Harms Patients and the Taxpaying Public


• The Myth of the Frivolous Medical Malpractice Lawsuit




Collins & Collins, P.C.
Albuquerque Attorneys

Dehydration and malnutrition have become so commonplace in nursing homes that many have called them "the silent killers." According to a study by The Commonwealth Fund, 35 to 85% of nursing home residents suffer from malnutrition, and between 30 and 50% are underweight. Another study published by the Journal of the American Geriatric Society found that an alarming 39 out of 40 residents studied did not receive adequate fluids for every day that the study was conducted. The Centers for Disease Control (CDC) estimated that as many as 208,000 patients over the age of 65 were released from short-term hospital stays with a primary diagnosis of dehydration.

Despite Federal and state laws requiring that nursing homes provide for their residents' nutritional needs, malnutrition and dehydration continue to plague the nursing home system. Under the Nursing Home Reform Act of 1987, 42 CFR § 483.25, nursing homes are required to ensure that a nursing home resident "maintains acceptable parameters of nutritional status," measured by weight and protein levels. They are also required to provide a resident with a therapeutic diet if nutrition becomes an issue. Additionally, if a resident is unable to care for him or herself, the nursing home is required to provide all of the services necessary to ensure proper nutrition.

There are many causes for dehydration and malnutrition in nursing homes. Many nursing home residents often cannot take care of themselves and in some cases need help eating and drinking. According to the Commonwealth Fund study, 40 to 60% of residents suffer from dysphagia, or swallowing disorders. Dysphagia may occur as a result of Parkinson's disease, strokes, dementia, or other neurological disorders. Additionally, 60 to 70% of nursing home residents suffer from some form of cognitive impairment, which in many cases involves patients who require assistance eating.

There are several other reasons why a nursing home resident may become dehydrated or malnourished. In certain cases, depression and cognitive impairment may lead to weight loss. In others, dental health problems that are not properly managed may make the patient unable to eat or limit their diet. In yet other cases, cultural or ethnic preferences may not be available in the nursing home's restricted menu. Some medications, including anti-depressants and high blood pressure medicine act as diuretics; other medications may make a patient sweat more.

There are several dangers involved with malnutrition and dehydration, especially among the elderly. Besides aggravating many existing ailments, malnutrition and dehydration can lead to tooth decay, high blood pressure, and even death. Dehydration can also cause kidney failure, coma, and electrolyte abnormalities.

Under the Nursing Home Reform Act, failure to detect and treat malnutrition and dehydration is a form of neglect. Several studies have suggested that incidences of malnutrition and dehydration can almost always be attributed to understaffing and poor supervision. Solutions as simple as having an adequate number of staff that are properly trained to supervise resident's food and fluid intake and routinely offering a resident fluids or food could avoid a large number of these situations and save lives.

While it is good news that these conditions are almost always preventable, it is also alarming to know that all of the injuries and even deaths that resulted from these conditions should not have happened had the nursing home not been negligent. If your loved one has suffered similar injuries as a result of the neglect of his or her nursing home, it is important address the issue immediately with the staff. If this does not fix the problem or severe injuries have already been suffered, then you should consult with an experienced personal injury attorney to determine whether or not there might be a nursing home negligence or abuse claim.

Collins & Collins, P.C.
Albuquerque Attorneys

Doctors at Monash Medical Centre in Melbourne, Australia announced a new medical trial that will use melatonin in an effort to prevent prenatal fetal brain injuries, including cerebral palsy. The trial will involve 20 women and will go on for 12 months. Even though results are not expected until 2013, there is reason to be cautiously optimistic.

According to the Centers for Disease Control (CDC) one in every 303 children in the U.S. suffers from cerebral palsy. Cerebral palsy describes a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. However, in a large majority of cerebral palsy cases, the damage occurs during pregnancy.

Whatever the cause, cerebral palsy greatly inhibits a child's development and quality of life. The severity of symptoms can range from moderate to severe. Many children with cerebral palsy require life-long, around-the-clock care.

The Monash study builds on previous research by its scientists and doctors who have found a link between intrauterine fetal growth restriction (IUGR) and injuries to the developing brain of the fetus. According to the specialists at Monash Medical Centre, one in 20 pregnant women exhibit IUGR, a situation where the placenta does not provide sufficient nutrients and oxygen to the developing fetus' brain. IUGR is responsible for a large number of cerebral palsy cases, but currently there is little doctors have been able to do in the way of treatment. The Australian study represents new hope in this field.

The doctors and specialists at Monash Medical Centre have spent the last five years studying and observing the causes of brain injuries and IUGR. Their research has established that the brain injury is caused by oxidative stress, where an excess of free radicals causes tissue damage. Free radicals are highly reactive chemicals associated with cell damage.

According to the doctors and scientists at Monash, doses of melatonin could prevent oxidative stress by protecting fetal brain cells. Melatonin is produced by the pineal gland, and besides regulating important functions in the body, such as the wake-sleep cycle, it is also a powerful antioxidant. With its ability to easily cross cell membranes and from blood to brain cells, scientists at Monash hope that melatonin will prevent oxidative damage to cells caused by free radicals.

The Monash study will include 20 pregnant women who will be administered melatonin orally in tablet form if they exhibit IUGR. Research at Monash has already shown that free radical levels in cord blood of IUGR births are higher than in normal births. The trial will also test the cord blood of babies who were given melatonin for free radical levels to see whether the treatment was successful. If successful, a second trial will include 100 women and two- and three-year follow-up exams of babies to test for development of cerebral palsy.

The trial, if successful, could represent major progress in prenatal treatment and hopefully prevent cerebral palsy in some children. There will still be those instances of cerebral palsy caused by medical negligence. The study does not address those cases. If your child has been the victim of medical negligence, then it is important to seek the counsel of an experienced personal injury attorney as soon as possible due to the unique deadlines associated with medical malpractice claims.

Collins & Collins, P.C.
Albuquerque Attorneys

The last thing that a person wants to worry about when they admit a loved one into a nursing home is the possibility of abuse through medication. There are several types of nursing home abuse that involve medication, and it is important to be aware of them to be able to identify and stop this practice.

Many common forms of abuse in nursing homes are related to medication and its administration to the resident, all of which constitutes negligence with potential legal liability. Sometimes patients may be overmedicated, receive medication in the wrong dosage, or be given the wrong medication. In other cases, food and medication allergies are overlooked due to the negligent failure to communicate among staff members regarding medication.

Overmedication, sometimes also referred to as chemical restraint, is often an intentional form of abuse. Overmedication occurs when nursing home staff provides patients with non-prescribed medication or higher doses of prescribed medication in order to pacify the patient. This of course makes the jobs of nursing home staff easier since they need provide little care to incapacitated patients.

Several studies show that an alarming number of nursing homes use chemical restraint to control unruly or problematic patients. In 2010, a California nursing home director was charged with providing anti-psychotic drugs to difficult patients, resulting in the death of three residents. According to the FDA, an estimated 15,000 nursing home residents die each year as a result of unnecessary and off-label use of anti-psychotic medication.

In other cases, the nursing home staff gives residents the wrong medication. This is usually unintentional and the product of understaffing and failure to train and keep accurate records. This practice can cause several serious complications for the patient that may even lead to death.

Administration of the wrong medication presents several dangers. On the one hand, when a patient is given the wrong medication, he or she is not being treated for the condition that they have, and on the other hand, the medication they are being given may harmfully interact with other drugs.

Many cases involving medication entail negligent documentation and communication among staff members. In certain cases, staff members fail to chart the administration of medication causing repeat dosing. In other cases, staff document giving a patient medication when in fact they did not. In still other cases, there is a failure in documenting all of the medications given to a patient, causing harmful drug interactions. Finally, all the medications may be perfectly documented yet the potential serious and sometimes life threatening interactions may be ignored.

If you suspect that a love one is being overmedicated, being given an incorrect medication, given the wrong dosage, exposed to dangerous interactions, over-medicated or otherwise suffering from medication errors, you should address the situation immediately with the nursing home administration.

The first step is to ask to see medication logs and order blood tests. Unfortunately, the next step is often contacting an attorney. This is often the only thing that will get the facility's attention. The New Mexico Attorney General's Elder Abuse Division is a good place to start. If your loved one has been harmed by medication errors, it may then be time to speak with an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Nursing homes are responsible for every aspect of care for their residents. To this end, nursing homes must keep accurate and timely documentation of the services that they provide their patients--from feeding and medication administration to physical therapy sessions. Accurate record keeping is essential to providing adequate nursing home care.

Unfortunately, , many nursing homes fail to keep proper records. Others still will falsify patient records to protect themselves from liability for personal injury lawsuits for the neglect and/or abuse of patients. While these practices are not uncommon, even inadvertent or neglectful inaccurate recordkeeping is dangerous and unacceptable. Inaccurate recordkeeping can and often does lead to severe injuries to patients. Sadly, in some cases these practices can even lead to the death of the resident.

Nursing homes are required to keep certain records by federal law. Under the federal Nursing Home Reform Act (Act), 42 USC § 1395I-3, a nursing facility is required to conduct an initial assessment of a resident's capabilities, medical issues, and needs within 14 days (7 days for Medicare) of admission. These assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident.

Based on the assessment, nursing facilities are required to formulate a comprehensive care plan within 7 days after the assessment is finalized. Falsification of assessment documents or care plans carries a civil monetary penalty that ranges from $1,000 to $5,000 per occurrence. Nursing facilities are also required to document pharmaceutical, nursing, rehabilitation, dietary, and social services performed.

However, reports around the country demonstrate on-going fraud and falsification of records in nursing homes. Research and case studies have revealed that there are several ways in which a nursing home can forge records and harm patients. The three most common patterns include falsification of records to cover up unfavorable outcomes, "fill-in-the-blank" chart keeping, and false medicine recording.

In many cases, nursing homes try to minimize their liability by changing a patient's records or failing to report incidents after an injury or death. Earlier this year, a nurse at a New York nursing home was found guilty of falsifying a patient's medical chart after the resident suffered a serious fall that was not documented. In another case, after witnessing a member of the staff severely beating a patient, an EMT was advised not to report the incident by a nursing supervisor. Though these may seem extreme lesser instances of failed reporting occur with regularity.

Some of these result from a variety of institutionalized practices. For instance, fill-in-the-blank charting occurs when nursing home staff members fill large numbers of charts at the same time without really knowing whether the treatment, medication, or diet was provided or whether the information they enter is accurate. This may happen in understaffed nursing homes or when an employee is not being properly trained and supervised. One nursing home in Santa Monica recently settled a case where a patient's chart claimed that the resident was given physical therapy several times a week. However, up to 28 of the sessions were documented by staff members who were not working on those specific days.

Similar to the above, falsified medication recording are not uncommon where staff members document that medication is being given in a certain dosage when in reality the dosage is incorrect, the medicine is not being administered at all or the wrong medication is being given. Other patterns that are not as common but still occur include backdating or forging arbitration agreements and falsification of consent forms to sedate residents. This practice may become more common with the recent United States Supreme Court opinion holding these agreements fully enforceable even under rather suspect circumstances surrounding the execution of the agreements.

Even though falsification of records and documentation is widespread in the nursing home industry, facilities are not often prosecuted or cited for this violation. Discovering and proving the falsification of records is so difficult and time-consuming that state agencies rarely have the time and resources to complete a thorough investigation.

Even though it may not avoid falsifications entirely, many personal injury attorneys suggest that staff is less likely to alter the records of a patient whose family is involved in their care. If you suspect that a nursing home is falsifying a loved one's records, it is important to contact a personal injury attorney immediately. Delay may make proving the violations somewhat more challenging.

Collins & Collins, P.C.
Albuquerque Attorneys

Injuries sustained by an infant during the labor and delivery process can lead to a lifetime of special needs and care. The services and supplies needed to bring some sort of normalcy to the injured child can quickly deplete even the most financially stable of families. Compensation for medical negligence or malpractice may ease some of the financial burdens of caring for a special needs child. Yet, this compensation can be quite challenging to obtain due to a wide variety of defenses that may be asserted in a birth injury lawsuit.

In attempting to obtain a legal remedy for a birth injury related to medical malpractice, it is the duty of the plaintiff, the one bringing the suit, to prove the injury resulted when the medical professional breached their responsibility to provide reasonable medical care. This seems like a fairly strait forward statement on the surface; yet, differing interpretations of the terms "duty," "breach" and "reasonable" can complicate proving one's claim.

Defining the standard of care can also present a major obstacle for the plaintiff. The standard of care can differ from medical facility to medical facility, as well as from physician to physician when faced with the same medical event. The standard of care usually must be explained by an expert witness, who describes their opinion regarding the proper response to or method used during the injuring event in question. Both the plaintiff and the defendant are allowed to introduce experts, and these experts can and often do present contradictory positions regarding the proper standard of care, particularly in situations involving a judgment call.

Causation is another factor that can diminish the plaintiff's case, as the defense may allege other possible reasons for the birth injury, like fetal developmental issues, maternal complications or genetic defects. The presence of any of these potential causes may limit or negate the responsibility of the medical professional in the eyes of a judge or jury even where there was medical negligence.

Defense counsel may also rely on how foreseeable a birth injury may or may not have been, given all the data and diagnostics a reasonable physician has at the time of delivery. If risk factors for certain birth injuries are not known beforehand, a medical provider may be able to successfully argue that he was not able to foresee the possibility of birth injury and thus, he did not breach his duty to provide reasonable medical care.

There may be many other defenses that can be alleged to challenge a medical malpractice claim involving birth injuries. Due to the huge level of damages in many birth injury cases, these cases are fought very hard by medical professionals and facilities. The costs and stress of a suit can be significant on the family. It is therefore important that the case be properly evaluated from the outset by an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Despite interventions put in place to help reduce the number of teen fatalities, car accidents still top the list as the number one cause of death for individuals aged 15 to 20. And not only are teen drivers at risk, it was found that 63% of teen passengers killed in an auto accident, were in a car driven by another teen. And, the risk of crash increases with every teenage passenger in the car.

Ultimately, teen drivers continue to be challenged by their immaturity and lack of driving experience, issues that can only resolve over time. Knowing some of the risks involved in driving, as well as participating in programs that help reduce these risks may better assist teens in meeting the challenges they face on the road.

Male teen drivers face the highest risk of an auto accidents, and are two times more likely to be involved in a crash than their female counterparts. Other high-risk teens include those who just received their licenses and those driving a car with other teen passengers.

High-risk behaviors are also prevalent among teens, which may include avoiding seatbelts, speeding and alcohol consumption. Perhaps the greatest risk, however, is the irresistible urge to to talk and text from their mobile phones. In fact, these practices have been shown to equal or exceed the risk associated with drunk driving. Sadly, teenagers are often prone to both at the same time.

Proven methods do exist in helping to prevent teen fatalities from auto accidents. The Centers for Disease Control states that graduated drivers licensing (GDL) programs can decrease fatalities among 16-year-old drivers as much at 38%. These programs are designed to give teens an opportunity to gain driving experience in a reduced risk setting that typically includes adult supervision. GDL programs may also prohibit cell phone use, restrict certain passengers, and limit nighttime driving, all behaviors that increase the risk of auto accidents.

Parental involvement is another factor in reducing the risks teenage drivers face. Indeed, research indicates teens with involved parents developed better driving habits, like remaining in acceptable speed limits and wearing seatbelts. According to the Research Institute at Children's Hospital of Philadelphia, teens were 30% less likely to use a cell phone while driving, were 70% less likely to drink and drive, and were half as likely to speed when they had parents actively engaged in setting boundaries and monitoring their activities.

There are also various on-line driver resources that can enhance traditional driver's education programs. The National Safety Council has several on-line courses, including "Alive at 25 Parent Program," that helps parents and teens partner in driver safety. The web also has teen-led safety initiatives, like "Keep the Drive," in which teens become the activists who spread the message of driver safety among their peers.

Unfortunately, auto accidents still rank highest in teen fatalities; however, most are preventable through risk awareness, experience, parental involvement, and additional training. In the end, time and experience will bring most teens safely through the precarious years of learning to drive.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Centers for Disease Control and Prevention, as many as 1 out of every 10 nursing home residents suffer from bedsores. Also known as pressure sores, decubitus ulcers, and pressure ulcers, bedsores may be symptomatic of a greater problem of nursing home neglect.

Bedsores a leading cause of iatrogenic death in the U.S. according to numerous reports. An iatrogenic death is an unexpected death caused by medical treatment. Bedsores are caused by constant unrelieved pressure and poor circulation. They are more likely to occur in areas where bone and skin are in close contact--like the back of the head, lower back, hip, elbow, and ankle areas. People with limited mobility are more prone to acquiring pressure sores.

Bedsores are divided into four stages depending on severity; from stage I, where the site is painful but the skin is intact, to stage IV, where there is large-scale loss of tissue. Pressure sores are treatable if discovered early, but they may be fatal in some cases if not properly detected and treated. Unfortunately, the treatment of bedsores is slow and painful.

Bedsores are among the most common injuries acquired in nursing homes and may signal other forms of nursing home negligence and neglect. The development of bedsores on nursing home residents may indicate several mistakes made on the part of the nursing home staff, from negligent monitoring, to poor nutrition, lack of exercise, lack of hygiene, or improperly managed incontinence.

Despite mobility problems, paralysis, and coma, studies show that most bedsores are preventable if nursing homes are attentive and properly care for patients. In fact, to participate in Medicare and Medicaid, nursing homes must comply with several federal laws regarding nursing home care that specifically address bedsores.

Under 42 CFR 483.25, nursing homes have the duty to prevent patients from developing pressure sores. For patients with existing pressure sores, nursing homes have the duty to provide proper treatment to ensure that the sores heal, do not become infected, and do not spread to other areas.

To ensure their compliance with these regulations, nursing homes often employ a bedsore prevention program that consists of regular evaluations and the development of a care plan. The problem is that in most cases of bedsores, prevention programs and care plans have been in place but have been improperly implemented or ignored by nursing home staff.

What is even more troubling is that in cases where there were allegations of neglect related to bedsores, the accusations were often accompanied by evidence that the nursing home altered records in an attempt to cover up their negligence.

Even though they may be difficult to prevent, nursing homes have a duty to monitor all patients for the development of pressure sores. For patients with limited mobility issues, the nursing home should implement a care plan to ensure that bedsores do not develop. If bedsores are present, the nursing home staff has a duty to discover them in their early, treatable stages, and to provide adequate treatment.

In light of the fact that bedsores in patients may lead to a reduction in Medicare and Medicaid reimbursements not to mention large jury awards, many nursing homes try to shift responsibility to the patient. On several occasions, nursing homes have argued that bedsores were unavoidable due to the patient's old age, mobility issues, and obesity. Other nursing homes have argued that the patient did not comply with medical advice, the patient acquired the bedsore prior to admission, or the patient suffered from a medical complication such as diabetes.

Regardless of all of the above, the nursing home has a duty to evaluate each patient individually, identify bedsores or risk for bedsores, and act accordingly. At no time should bedsores go undetected for an extended period or reach a stage of infection where they are no longer treatable.

If a loved one has developed bedsores at a nursing home this may be a sign of neglect, for which there may be a personal injury claim. If you discover a bedsore, you should demand immediate treatment and a plan to avoid future such issues. If the bedsores are advanced or recurring in nature, you should probably seek the advice of a personal injury attorney to protect your loved one.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Bureau of Labor Statistics 3.1 million nonfatal workplace injuries and illnesses were reported in 2010. A preliminary total of 4,547 fatal workplace injuries were reported for the same year. Most companies and employers in New Mexico are responsive to laws concerning job-related injuries. However, stories of how companies have refused to pay worker's compensation benefits are constantly surfacing in the news. It is natural for individuals injured in a work-related accident to wonder if their employers have done everything they can and are required to do by law.

Under the New Mexico Workers Compensation Act (Act), if a personal injury or death occurred while an employee was performing a work-related duty, the employee is entitled to worker's compensation benefits for his or her injuries. Worker's compensation in New Mexico covers medical, indemnity, and funeral benefits. Medical benefits include physical care and therapy, hospitalization costs, psychiatric care, counseling, chiropractic treatment, medication, and prescribed medical equipment.

Depending on the extent of injury, New Mexico Worker's Compensation is meant to cover a portion of income while the disability lasts. The types of benefits available are total disability (TTD), permanent partial disability (PPD), and permanent total disability (PTD).

However, the Act limits the amount an employee is able to recover for a personal injury or death that occurred on the job. In fact, in cases of serious injury or death, the benefits allowable under worker's compensation are sorely inadequate. For injuries suffered on the job, the benefits allowable under the Act are the exclusive remedy for those employers that are in compliance with the provisions of the Act.

Having said this, there may be several reasons to contact an experienced personal injury attorney for injury or death arising from a work-related accident. In some cases, employers fail to live up to their responsibilities under the Act. If the employer has failed to obtain worker's compensation insurance, then the employer will not be protected by the Act. Without the protection of the Act, the injured employee may sue the employer for all recoverable damages just like any other defendant.

In other cases, there may be a third party involved in the work-related injury. Third parties can be part of a work related injury in many ways. For example, there may be several different contractors working on a construction site where an employee is injured. For workers whose jobs involve transportation, the negligent acts of another driver or passenger may injure them. In yet another case, a worker may be injured on the job by a defective product manufactured by a third party. In all of these cases and many others, an employee may have a personal injury or wrongful death suit against a third party above and beyond their worker's compensation claim.

Generally, if an employer is complying with the Worker's Compensation Act, an employee may not bring a worker's compensation claim against the employer. Nor can an employee sue to the employer in personal injury. If, however, the employer is not complying with the Act, or there is a third party involved, the injured employee may have a valid personal injury claim. In these cases, it is important to contact a personal injury attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys