New Mexico Injury Attorney Blog

There are a number of important deadlines in personal injury lawsuits. The first and perhaps most important is the statute of limitations. Missing this deadline will bar your claim completely.

Statutes of limitation are laws placing specific time limits on when an individual can file a lawsuit. Different time restrictions apply depending on the legal matter in question--from contract disputes and personal injury to medical malpractice and defective products.

All of these different areas of law have one thing in common: Failing to file suit within the statute of limitations with few exceptions acts as a complete bar to recovery. Consequently, it is vital to understand exactly what limits apply in your case so that your legal rights are preserved.

The time limits that apply in each case depend on various factors, including the type of legal claim, the subject matter of the claim, the plaintiff(s) the defendant(s), in some cases the maturity or mental capacity of the plaintiff.

Basic Rules
In general, with the exceptions set forth below, the statute of limitations in personal injury cases is three years from the date of the injury. Personal injury cases usually include a veriety of claims including automobile accidents, medical malpractice, dog bites, slip and fall cases, and many other types of accidents. The same three year time limit applies to each with .

However, it is critically important not to rely on the assumption that you have three years after one of these injuries to file a claim. That is because there are many different rules that apply depending on the party named as a defendant and the capacity of the individual hurt.

Additional Rules
-Children/Incapacitated: Special rules apply to children and those who are incapacitated. (NM Stat § 31-1-10) Instead of having three years to file a claim following an injury, they have one year following the "termination of such incapacity" to file the lawsuit. For children that means that they have one year following their 18th birthday to commence the legal action. Therefore if injured children are involved, parents should not wrongly assume that their claim is time barred, even if it has been years since the injury. However, as you will see, there are exceptions to this exception as well.

-Medical Malpractice: There are a number of special rules for medical malpractice claims. patient harmed by medical negligence generally has three years to file suit. However, in medical malpractice cases the special rules for children do not apply the same way (NM Stat § 41-5-13). The New Mexico Medical Malpractice Act alters the time limits when the defendant is a "qualified healthcare provider." In those cases the only special protection for minors is, if they are 6 years old or younger, then they will have until their 9th birthday to file suit. In other words, if a child is hurt by medical negligence when they are 4 years old, they will have 5 years (until their 9th birthday) to file suit. However, if a child is hurt when they are older than 6, then they only have the same three years to file--the statute is not tolled.

-Against Government: Many very restrictive rules apply in most legal claims where a government entity (or public employee) is named as a defendant. Most importantly, a party generally has to give notice (Tort Claims Notice) of the claim within 90 days of the incident to a designated official for the public entity to be named. This is a short time-window, meaning those who have a suit potentially involving a public entity must act quickly to preserve their rights. Assuming that the 90 day notice was given, plaintiffs then only have two years after the incident to file suit. The only exception applies to children under 7 years old, who will always have until their 9th birthday in which to file suit (similar to the medical malpractice rule) (NM Stat § 41-4-15).

Considering the complexity of some of these timing rules it is absolutely essential for those hurt by the misconduct of others to visit with an experienced accident and injury attorney as soon as possible to ensure the right to seek redress is not lost.

Extension of Statute of Limitations in New Mexico for Cases Originally Filed in the Wrong Court

Medical Malpractice Claims Raise Unique Statute of Limitations Issues

Tolling of Statute of Limitations is Rare

Collins & Collins, P.C.
Albuquerque Attorneys

Financial exploitation of a resident is one of the many ways in which a senior can be abused while under the care of a nursing home. Stories are not uncommon of elderly patients being swindled out of their life savings by a professional caretaker or nursing home employee. There are many forms of financial abuse, most of which are difficult to detect and may go on for years. In order to protect yourself or a loved one from financial exploitation and abuse in a nursing home facility, it is important to know the types of financial abuse and the warning signs to look out for.

Financial exploitation or abuse is the unlawful or improper use of a senior's assets, funds, or property. This type of abuse can take many forms and can range from the theft of pocket change and personal belongigns to the appropriation of a senior's home and bank accounts. In some cases, the senior is unaware of the situation; in others, the elderly patient is manipulated into giving away their property, possessions, and money. Sometimes it will involve a one-time theft of a possession in the resident's room, while other times a staff member builds a relationship for years in order to gain control of the patient's savings accounts or convince the resident to change their will in their favor.

Other examples of financial exploitation include staff members cashing residents' welfare, social security, and other checks without authorization; gaining power of attorney over the resident; and forging a patient's signature in documents and contracts. In many cases the staff member will use deception, coercion, threats or manipulation to gain control over part or all of a resident's finances. As our seniors are in an extremely vulnerable position, especially when residents of a nursing home, it is important to be vigilant for warning signs that a love one is being financially exploited.

There are several red flags that may indicate that a nursing home resident is being financially exploited or abused. Obvious signs include forged signatures on important documents or checks and the sudden disappearance of valuable possessions. Other forms of financial abuse are more difficult to identify. These include sudden, unexplained, or frequent withdrawals from a bank account; the appearance of new names on the resident's bank signature card; frequent, unusual withdrawals with the resident's ATM card; and new loans or mortgage contracts. Other signs to look for are recent changes to a resident's will, deeds, or trust; the provision and payment of unnecessary services; and unexplained disappearance of funds.

There are several things that a family member can do if they suspect elder abuse of any kind, including financial exploitation. A first step should be to verify the story with the resident and gather the pertinent documents and records. If there is a danger to the safety of the resident, consider removing them from the facility. If it clear that a crime has been committed, it is always important to inform the police and district attorney and file a complaint with the Adult Protective Services Division of the New Mexico Aging and Long Term Services Department.

Discovering and reporting financial exploitation of a nursing home resident can be complicated. It is important to seek out the assistance and guidance of those charged in the state with the protection of elders. There is no reason to suffer or allow your loved one to suffer alone at the hands of an abusive or exploitative facility or staff.

Albuquerque Attorneys

The New Mexico Court of Appeals recently held in Foster v. Sun Healthcare Group that unless there is a clear showing of negligence in prosecution, a plaintiff who brings suit in the wrong court has six months to bring suit in the correct court, even if the statute of limitations for the claim has run.

Personal injury and other tort claims must be filed in a court that has both subject matter and personal jurisdiction to hear the case. Many civil cases are brought in state court. However, a federal court may have jurisdiction if the case involves a federal question or diversity of citizenship between the parties. For a federal court to have diversity jurisdiction, the parties must be residents of different states or a foreign country. If a corporation or other non-person entity is a party to the case, the home state of the corporation is determined by several factors including the state of incorporation, the location of its headquarters, etc.

"Saving statutes" are state laws that are meant to give citizens broad access to the state court system. New Mexico law contains a saving statute, NMSA 1978, §37-1-14, which allows a second suit to be brought within six months of the first suit if it was brought in the wrong court, regardless of whether the statute of limitations on the claim has run. However, a plaintiff cannot take advantage of the saving statute if the plaintiff was negligent in prosecuting his or her case.

According to the Court, a plaintiff is negligent in prosecution when he or she fails to exercise due diligence. A failure to exercise due diligence occurs when, at the time of filing a lawsuit, a plaintiff knows or should have reasonably known that the court lacked jurisdiction over the case. If a plaintiff files in the wrong court, the plaintiff's mistake must have been an honest mistake and the suit in the wrong court must have been initiated with the good faith belief that the court was proper in order to take advantage of the saving statute.

In Foster v. Sun Healthcare Group, the Plaintiff filed his medical malpractice suit in federal court in a timely manner, within the three-year statute of limitations. The Plaintiff's original complaint claimed that the federal court had diversity jurisdiction over the case. Once the federal court found that it did not have jurisdiction over the case, the three-year statute of limitations had run. However, availing himself of the New Mexico saving statute, the Plaintiff filed suit in state court.

The defendants were granted summary judgment by the state court based on the statute of limitations and the claim that the Plaintiff was negligent in prosecution and therefore not allowed to use the saving statute. The New Mexico Court of Appeals disagreed. The Court stated that the defendants were unable to show evidence that the Plaintiff knew or should have known that diversity jurisdiction in fact did not exist. For this reason, the Plaintiff was not negligent in prosecuting his case and could take advantage of the saving statute.

Jurisdictional matters can be complicated and difficult to navigate. An experienced attorney will ensure that you file your case in the proper court and inform you of all of your rights and options.

In many situations, an injured party may have a significant claim against another person or company, but cannot pay their day-to-day bills while litigation is pending. It is well known that personal injury litigation can take months and even years to settle or go to court.

During this time, an injured party may be facing rising medical costs and rehabilitative expenses above and beyond normal living expenses. Worse yet, the injuries may have resulted in reduced wages because of absence and even loss of employment. As litigation drags on, bills continue to pile up and earning power may be down or non-existent. This may leave the injured party with very few choices.

While an attorney may advance litigation costs, it would be improper for an attorney representing a party to loan that party money for living or any other expenses. The New Mexico Rules of Professional Conduct for Attorneys expressly prohibit an attorney from providing a client any type of loan or financial assistance in connection with pending or contemplated litigation.

Under NMSA § 16-108, the only loan that an attorney can make to a client in connection with litigation is advancing court and litigation costs. The repayment of this advance can be contingent on the outcome of the case, meaning that the client will only have to pay the attorney back if the client wins. Any other loan, payment, or advance in connection with litigation is expressly forbidden by the New Mexico Rules.

Certain lenders offer different kinds of pre-settlement funding or pending lawsuit cash advances. These are hardly ever a good idea. A lawsuit loan is a cash advance given by "investors" to a person with a pending lawsuit, taken out against the lawsuit award. In most cases the loan will not be due unless the plaintiff wins the case. Citing the risk of not getting paid unless the lawsuit is successful, pre-settlement funding companies justify charging interest rates of over to 100% per year. However, in truth these "investors" meticulously and carefully screen cases, only accepting those that have a very high probability of success and/or pre-trial settlement.

Since it is technically called an investment rather than a loan, these "investors" and the cash advances are unregulated as loans and not subject to predatory lending laws. These so-called investments are not subject to interest rate caps and do not have to clearly disclose pricing information. While lawsuit loan companies advertise their speedy 24 hour approval process, their interest rates and pricing is often lost in the fine print.

There are several avenues that a personal injury victim can pursue to cover personal living expenses while their lawsuit is pending without having to resort to the predatory lending practices of pre-settlement funding companies. In some cases, doctors and hospitals may be willing to defer payment until the lawsuit is resolved. It is important to communicate early and often with doctors and hospital administrators about this possibility and the pending litigation. In other cases, the victim or defendant's insurance company may pay certain medical bills.

An experienced personal injury law attorney can help to explain and guide you through what can be a long and difficult process.

Related Reading:
Personal Injury Lawsuit Loans are Very Costly
Paying Medical Bills Pending A Car Accident Settlement
The Limits of Insurance Coverage in a New Mexico Auto Accident
Medical Liens Can be Half the Battle in a New Mexico Personal Injury Case

Collins & Collins, P.C.
Albuquerque Attorneys

In what seems to be another victory for healthcare corporations, the New Mexico Court of Appeals ruled recently that a number of professional corporations and a foreign limited liability company were considered to be "qualified health care providers" under the New Mexico Medical Malpractice Act (MMA) and therefore entitled to its protection.

Baker v. Hedstrom was a consolidation of three cases where all plaintiffs claimed medical malpractice against several professional corporations and a foreign LLC. In all three cases, the plaintiffs argued that the defendants did not fall within the definition of "qualified healthcare provider" under the MMA and therefore were not entitled to the protections provided by the Act. The Court of Appeals disagreed and held that the New Mexico Legislature intended to include defendant corporations and LLC's in the MMA definition of "qualified health care provider" and protect them under the Act.

Being a "qualified health care provider" under the MMA has significant advantages. Under the MMA there is a $600,000 cap for damages for medical malpractice. The cap does not include past medical costs and benefits, but the MMA prohibits monetary damages for future medical expenses, which are paid as they are incurred. The MMA also limits an individual health care provider's personal liability to $200,000.

Under the MMA, if an individual or entity is a "qualified healthcare provider," the statute of limitations on the medical malpractice claim is only three years from the date of the malpractice, regardless of whether the malpractice was discovered or could have been discovered during this period. For example, if a negligent act by a doctor qualified under the MMA is discovered one year after it happened, the patient only has two years to file suit. If a patient discovers the negligent act three and a half years after the malpractice, no suit can be brought against the provider.

Additionally, if there is a complaint against a qualified provider under the MMA, before being allowed to file suit in civil court, plaintiffs must submit to a mandatory medical evaluation process before the medical review panel.

Qualification as a healthcare provider under the MMA is not difficult. To qualify as a "health care provider" under the MMA, an individual doctor must pay a surcharge and file proof of liability insurance of at least $200,000 per occurrence or deposit at least $600,000 with the superintendent. If a hospital or other facility wants to qualify, the superintendent determines the surcharge and bases coverage or deposit for each hospital or facility based on a risk assessment study.

In this case, even though the Court agreed that the defendants would not be considered "qualified health care providers" under the plain language of the MMA, it concluded that it was the Legislature's intention to include defendant and entities like them in the MMA. Additionally, according to the Court, from 1976 to 2009 the New Mexico Department of Insurance has accepted payment from professional corporations and other organizations in order to qualify these under the MMA. Furthermore, even in 2009 when the state Superintendent of Insurance issued a memo proposing that these types of organizations not be included in the MMA's definition of "qualified health care providers," a court issued a restraining order requiring the Superintendent to rescind the memorandum and continue to allow these organizations to procure insurance under the MMA.

For the reasons above, the Court held that defendants and organizations like them were considered "qualified health care providers" and entitled to the MMA' protections.

Qualification as a qualified healthcare provider provides many protections to the doctors and medical facilities largely at the expense of the injured patient. However, much if not all of the costs of capped medical negligence cases will fall upon the taxpayers through Medicaid, Medicare and Social Security.

A U.S. Supreme Court ruling earlier this year regarding mandatory arbitration provisions in nursing home contracts will most likely overrule an earlier New Mexico case that represented a victory, albeit a small one, for individuals injured in a nursing home.

In general, nursing home admission documents contain mandatory arbitration clauses, under which patients give up their right to file a personal injury lawsuit against the nursing home if that nursing home commits negligence or abuse. Taking advantage of the fact that people are extremely vulnerable when entering a nursing home, these institutions attempt and generally succeed in getting patients to sign away rights that they would otherwise not had they not been in a vulnerable and stressful situation.

Recognizing this unequal bargaining position, the New Mexico Court of Appeals ruled in Strausberg v. Laurel Healthcare Providers that nursing homes that sought to enforce arbitration agreements had the burden of proving that the arbitration agreement is not unconscionable. This was a departure from previous case law regarding commercial transactions where the party challenging the validity of an arbitration agreement has the burden of proving the agreement is unconscionable.

While the New Mexico Court of Appeals decision was thought to be a minor victory for victims of negligence or abuse at the hands of a nursing home, it was short-lived. This ruling is likely to be affected and preempted by a February 2012 Supreme Court per curiam opinion regarding the validity of arbitration agreements under the Federal Arbitration Act (FAA).

In Marmet Health Care Center v. Brown the U.S. Supreme Court addressed a West Virginia law that declared arbitration agreements for personal injury or wrongful death claims against nursing homes unenforceable. The Supreme Court of Appeals of West Virginia held that that the state law against arbitration agreements was not preempted by the FAA. The Supreme Court disagreed.

The Marmet case made it clear that any state law that declared nursing home arbitration agreements for personal injury and wrongful death claims unenforceable was preempted by the FAA and previous Supreme Court decisions. The Supreme Court also stated that once that Court had interpreted a federal law, lower courts did not have the power to contradict or fall short of implementing the rule as interpreted by the Court.

Pursuant to the FAA, any and all arbitration clauses in commercial contracts are "valid, irrevocable, and enforceable," unless the arbitration clause is unconscionable. Moreover, the Supreme Court has held on several occasions that the FAA preempts state laws that prohibit arbitration clauses, and did so again in Marmet.

In light of this holding, the previous New Mexico ruling in Strausberg is likely to be overruled. Even though New Mexico law does not prohibit arbitration agreements outright in nursing home contracts, the ruling in Strausberg may be seen to be at odds with the holding in Marmet. Nursing homes will likely argue that having to prove an arbitration agreement is not unconscionable is inconsistent with the FAA rule that arbitration clauses are presumed "valid, irrevocable, and enforceable."

Should this occur, it is more important than ever that residents and family members refrain from signing any arbitration agreement in a nursing home document. It is illegal for the nursing home to refuse admission for refusal to sign the arbitration agreement. If a nursing home is trying to force the agreement on you or a loved one, it is highly advisable to speak with an elder law attorney.

Related Reading:
Mandatory Arbitration Ruling is Victory for Victims of Nursing Home Negligence and Abuse

Collins & Collins, P.C.
Albuquerque Attorneys