New Mexico Injury Attorney Blog

Many personal injury cases involve injuries sustained in an automobile accident. Victims of car accidents often find themselves with mounting medical care bills and wonder how to pay them while the case settles.

New Mexico is a "fault" or tort state for liability purposes in car accidents. This means that generally, the person at fault--and that person's insurance--is liable for the personal injury and property damage that results from the accident.

However, even if the other driver is at fault, their insurance company is under no legal duty to advance medical expenses to a third party. Moreover, it is not common for the insurance company of the opposing party to pay medical or any other expenses in advance of settlement. If and until settlement comes, the victim must figure out how to pay for his or her medical expenses.

A person injured in a car accident has several options when seeking payment for medical expenses before settlement. A victim may file with their own insurance if they have no-fault or MedPay coverage, obtain a letter of protection, or file with their own health insurance.

Many automobile insurance policies offer additional no-fault coverage. No-fault coverage, also called personal injury protection, pays the medical expenses of the driver and passengers of the car covered, regardless of fault. No fault insurance usually covers medical expenses and sometimes lost wages, but only up to the limits of each individual policy. Pain and suffering are not recoverable under no-fault insurance.

A popular form of no-fault coverage is Medical Payments Coverage (MedPay). A person with MedPay coverage will have access to payment advances medical treatment. Since MedPay is a type of no-fault coverage, fault does not have to be determined before using the coverage. MedPay covers medical expenses for the insured driver when driving the insured vehicle, when riding as a passenger in another vehicle, or if hit by a car as a pedestrian. It also covers all passengers riding in the insured vehicle, family members driving the insured vehicle, and a family member if struck by a car as a pedestrian. MedPay coverage is optional and can range from $1,000 to $100,000 per person per accident.

Another option is to obtain a treatment letter of protection. A letter of protection is more like a contract than a letter between the victim, his or her attorney, and the medical provider. The letter of protection will allow the victim to obtain the medical care needed in exchange for a promise from the victim and the victim's attorney to pay medical expenses out of the settlement funds. Nevertheless, not all doctors will accept letters of protection.

In many cases, victims have no other option than to use their own health insurance to pay their mounting medical bills. If a victim has no other funds available, it is advisable to use health insurance to avoid having late medical bills sent to collection for non-payment.

Once the case has settled, the insurance company will ask for reimbursement, also called subrogation, for the amount the insurance company actually paid the medical provider. Since most insurance companies get a discounted rate from medical providers, it is likely that the victim will end up with more of their settlement cash than if they had paid for the treatment out of pocket or failed to pay awaiting settlement.

These lien issues can be complicated. As such, if faced with this situation, it highly advisable to seek the guidance of an experienced personal injury attorney.

In New Mexico, if you suffer an injury in an accident that is due to someone else's negligence, you can recover damages for your injuries from the defendant or the defendant's insurance company.

A plaintiff can recover damages to reimburse the plaintiff for medical expenses, lost wages, pain and suffering and other damages associated with the injuries. However, if you have a pre-existing condition or injury that becomes aggravated or worsens because of the accident, you must admit the pre-existing condition and injury to the defendant.

Failure to admit a pre-existing condition or injury can seriously harm the person's personal injury claims. In some cases, failure to admit through active concealment can result in sanctions, attorney fees and costs and even dismissal of the lawsuit.

A pre-existing condition is a condition that the plaintiff had prior to the accident like a back or neck injury. An experienced personal injury lawyer would far prefer dealing with these injuries upfront than learning of them later through the personal injury discovery process. In fact, the preexisting injuries do not necessarily harm a personal injury claim. However, deceit and concealment of those same injuries always will when discovered by the opposing insurance company. And it is safe to assume that they will be discovered so it is best to address them early and candidly.

The opposing insurance company will always conduct its own discovery on the personal injury claims. The depth and scope of the discovery will depend on the size of the claim. However, even in minor claims, the insurance company will request medical records. In fact, those related to the accident must be provided by your personal injury attorney along with the demand. The insurance company may very well request more than what is provided. Quite often, the insurance company will request the last 10 years of medical records and these must generally be provided.

The collection of medical records can proceed in one of two ways. The plaintiff gathers and provides them. Or the insurance company simply obtains names and addresses for all medical providers along with HIPPA releases and obtains them directly. In fact, even when the plaintiff does provide them during the settlement process, the insurance company may elect to get the records directly anyway.

As noted, the existence of preexisting injuries or conditions does not necessarily you're your claim. In fact, New Mexico like most states follow the "eggshell plaintiff" doctrine which means that the defendant takes the plaintiff with all his or her frailty, susceptibility to injuries, preexisting conditions, and prior injuries. In short, the defendant will be responsible for the aggravation of or reoccurrence of prior conditions or injuries.

The point is to discuss the matter with your attorney immediately. If you have doubts whether the issues are relevant, err on the side of disclosure. Concealment, even arguably innocent concealment, will do nothing to advance your claims.

• Concealing Preexisting Injuries Can Seriously Harm a New Mexico Personal Injury Claim


• Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim

Collins & Collins, P.C.
Albuquerque Attorneys

The term "low impact accident" is one coined by insurance companies to describe automobile accidents where there was little or no property damage and usually occur at very low speeds. Insurance companies insist that since there is little property damage there can only be little or no personal injury involved in a low impact car accident. This is often not the case.

In the past, insurance companies defined low impact accidents as those where there was little of no physical damage to the vehicle and where the estimated cost of repair was $50 or less. However, insurance companies set this threshold themselves and have been increasing it through the years. Some companies today consider any accident involving repairs under $5,000 a low impact accident.

However, according to several specialists, there is no correlation between the severity of property damage and the severity of physical injury in car accidents. While an accident with severe property damage can cause little physical injury, one where there was little or no property damage to the vehicle can involve serious physical injury. While vehicles are designed to withstand low velocity impacts between 5 and 10 miles per hour, the human body is not.

Soft tissue injuries are the most common among low impact car accident victims. Most injuries occur to the soft tissue in the neck and back areas. Soft tissues include muscles, ligaments and tendons and lead to injuries like contusions, bruises, strains, and sprains. Whiplash is the most common injury in low impact accidents.

A study commissioned by General Motors (GM) conducted test crashes at speeds of 8 miles per hour or less and found that whiplash does occur during low velocity crashes, a fact that insurance companies have been denying for years. The GM study also found that more than half of all car accident injuries involve whiplash. Depending on the age of the victim and the severity of the injury, whiplash can be permanently disabling. Almost 30% of people with a neck injury reported suffering neck pain three years after the accident.

Whiplash injuries pose a number of challenges to recovery. First, whiplash will often present a delay in the onset of symptoms. Many victims who are later diagnosed with whiplash fail to report having pain at the scene of the accident and many do not report feeling any pain until 24 hours to one week after the accident.

Additionally, many insurance companies assert that it is impossible to get whiplash in a car with a high seat back or head restraint. However, several studies have proven that this assertion is completely false. If not properly positioned for each person, a headrest may act as a fulcrum and cause whiplash or contribute to whiplash injury. A Federal Motor Vehicle Safety study found that only 25% of adjustable head restraints were positioned correctly. This means that in 75% of cases, the head restraint is likely to cause or contribute to whiplash injury, not prevent it.

Unfortunately, there are some insurance companies that routinely deny or trivialize low impact injuries essentially ignoring the established science. An experienced personal injury attorney can in most cases show an adjuster the error of his or her reasoning. If the adjuster will not respond to reason (and there are some insurance companies that apparently take pride this position), then they must respond to litigation.

Related Reading:

• Valuation of Personal Injury Claims Not Always Strictly About the Numbers


• Fair Settlement of Personal Injury Claims is More Math than Wrath!

The Trayvon Martin case has placed the spotlight on Florida's "stand your ground" law and has given rise to heated debates about whether these kinds of laws encourage vigilantism and allow guilty individuals to get away with murder.

Stand your ground laws essentially state that a person who reasonably believes themselves to be threatened with death or serious bodily injury may use force to defend him or herself, even if there is an available and viable way to retreat. In states that do not have stand your ground laws, an individual who is attacked has the duty to retreat and can only use deadly force when retreat is not possible.

More than half of U.S. states have some type of stand your ground law. New Mexico is among them. The particular elements and requirements of stand your ground laws differ from state to state.

The New Mexico stand your ground law differs somewhat from the Florida law currently at issue. According to the New Mexico stand your ground law, "A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." While a person in Florida must have a right to be at the location where the altercation takes place, in New Mexico a person merely needs to be "threatened with attack."

However, this does not mean that there are not very significant risks associated with exercising the right to stand one's ground. In addition to possible very serious criminal charges, a person found to have acted wrongly would be looking at significant personal liability for personal injury and wrongful death claims.

For a defendant to avail himself of the stand your ground provision as part of a self-defense argument in New Mexico, a court typically considers whether the defendant was acting in self-defense in the first place. In New Mexico, a defendant who kills another in self-defense while standing his or her ground must show that he or she (1) was placed in reasonable fear of immediate death or great bodily harm, (2) used a reasonable amount of force to avoid the threat, and (3) did not instigate the encounter.

Under New Mexico law, the defendant's perception of the threat must have been reasonable. Armed pursuit of an individual through a dark neighborhood does not show reasonable fear or perception of threat. On the contrary, armed pursuit may show absence of fear. Additionally in New Mexico, a person using self-defense may not use more force than is reasonably necessary to evade the threat. For example, shooting an unarmed individual during a fistfight will generally be considered using more force than is reasonably necessary. Likewise, beating someone to a pulp following an initial threat would probably raise possible problems as well.

A defendant who, as alleged in the Florida case, voluntarily pursues, confronts, or in any way instigates the altercation may not then claim they were acting in self-defense or standing their ground. Similarly, a defendant will not be permitted to use a self- defense/ stand your ground defense if the other person tried to de-escalate or defuse the situation and the defendant failed to relent.

In short, the right to stand one's ground is not a blanket defense to criminal charges. And such behavior may fare even worse in civil court in a personal injury lawsuit where the burdens of proof are far less than the high criminal burden of beyond a reasonable doubt.

Most people who admit a loved one into a nursing home do so because the senior requires constant care that they are not able to personally provide. The nursing home undertakes this responsibility, which includes supervising and ensuring that the resident does not put him or herself in a dangerous situation. Nonetheless, many residents manage to wander or "elope" from the nursing home grounds, which often puts them at high risk for injury, attack, exposure, and even death.

Even though often used interchangeably in the nursing home industry, "elopement" and wandering are slightly different. Elopement occurs when a resident who is unable to protect him or herself goes off nursing home grounds unsupervised and encounters some form of harm or danger. Wandering occurs when a resident with dementia, Alzheimer's, or other psychiatric diagnosis encounters a dangerous situation while moving around the nursing home facility unsupervised.

There is no single set of characteristics that indicate that a nursing home resident is at risk for wandering or elopement. However, there are several factors that a nursing home must take into account when assessing a resident's risk for eloping or wandering. The resident's age and mobility should always be considered. It is more likely for a highly mobile, younger resident to elope or wander than it is for a resident who is recovering from hip surgery. It is also more likely for a resident with dementia or other psychiatric diagnosis to stroll off and put him or herself in harm's way. Also, previous incidents involving wandering or eloping can be indicators that the resident is prone to doing it again.

If a patient is at a high risk for wandering or elopement--say because she suffers from dementia, has no mobility issues, and has eloped or wandered several times in the past--the nursing home may be required to assess this risk and formulate a plan to prevent it. 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 a few days of admission. If the patient is at a high risk for wandering or elopement, this should be noted on the initial assessment. Based on the assessment, nursing facilities are required to formulate a comprehensive care plan after the assessment is finalized. Subsequent assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident. An episode of elopement or wandering that has resulted in an injury or a high risk of an injury for the patient should prompt an assessment and a new care plan that ensures that the patient does not repeat his or her actions.

Recurring incidences of elopement or wandering resulting in a resident's injury or death may signal nursing home neglect and/or abuse. Wandering and elopement should generally not occur, and when it does, should be detected early enough to avoid injury to the resident if the nursing home follows certain principles and procedures. These include hiring the adequate staff to supervise all of the nursing home residents; train staff properly on supervising residents; install alarms, cameras, and other surveillance devices at exits and entrances as well as near restricted or dangerous locations; adequately assess the risk for elopement or wandering of each individual resident; and having a quick-response plan in place.

While it is true that nursing homes must walk a fine line between not severely restricting residents' freedom of movement and keeping them safe, it is the nature of the care that they offer and something that should always be a priority for staff and administrators. Failure to properly guard against wandering and elopement may constitute neglect on the part of the nursing home. In cases where the patient is injured, this neglect may give rise to a personal injury claim.

If you loved one has been seriously injured as a result of wandering or elopement in a nursing home, it is important to contact an experienced personal injury law attorney right away to fully protect the rights and safety of your loved one.

Related Reading:

• Malnutrition and Dehydration in Nursing Homes


• Nursing Home Abuse and Medication Issues


• Nursing Homes' Patient Records Often Neglected and Occasionally Deliberately Falsified

Collins & Collins, P.C.
Albuquerque Attorneys