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.
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.
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.
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.
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.
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.
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.
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.
Approximately 4 million women give birth in the U.S. each year, and more than 60% of them receive epidural anesthesia during labor. Epidural anesthesia is a process where pain management medication is injected near the nerves in the mother's lower back. And, while this process may ease pain and discomfort for the mother, it can in some circumstances create a greater risk of injury to the baby.
Epidural anesthesia has been found to increase a mother's temperature. While the link between epidural anesthesia and fevers is not well understood, one belief is that an inflammation response is triggered, generally in the fetal membranes and placenta. Other studies suggest that epidural anesthesia may decrease the mother's ability to dissipate heat at a time when she is expending energy due to the labor process.
Dr. Scott Segal at Tufts Medical Center in Boston, a teaching hospital, explains that this rise in temperature is not seen with other types of pain control or drug-free labor. Nor is there an effective, safe method for preventing maternal fever from epidural. He also cites that maternal fever in general is known to complicate up to 1/3 of all deliveries.
According to a recent study published in Pediatrics, a possible link has been found between birth injuries and women with elevated temperatures who received epidural anesthesia. The study suggests the higher the mother's temperature, the greater the likelihood the infant would experience problems at birth. These problems included breathing difficulties, poor muscle tone and even seizures.
The study documented that 19.2% of the women who received an epidural developed temperatures above 100.4 degrees. If the fever was over 101 degrees, the infant had a 2-6 fold increase in the risk for problems. Interestingly, the study revealed there was no difference in an infant's outcome for women who did not develop a fever after epidural injection versus those who did not have an epidural at all.
Many infants who experienced problems after a delivery involving a maternal fever overcame the issues associated shortly after birth; however, others did not. Maternal fever has been linked to infant brain injury resulting in cerebral palsy, muscle atrophy and learning disabilities.
And, while other factors could be at work, namely, intrauterine infections, maternal fever is certainly a risk factor that should be discussed with one's physician before delivery. Even if a mother has no plans to rely on epidural anesthesia, plans can change once labor sets in. It is best to know the risks ahead of time without the added pressure of making decisions while in the grips of a painful contraction.
These are all issues that should be discussed between an expecting mother and her physician. Only through understanding can a patient make informed decisions in the midst of delivery.
A claimant bringing a personal injury claim on his own behalf typically has no idea what to expect. In most cases, it is the claimant's first experience with attempting to get payment from an insurer for injuries and other damages that the person has suffered due to the negligence of its insured.
Some claimants are surprised that the insurance adjuster doesn't believe that they are truly injured and accept their word as to the damages incurred and the negative impact that the injury has had on their lives. The reality of the case is that the insurance adjuster is trained to be skeptical and to question every fact. Adjusters receive bonuses based on their level of skepticism and low payments that generally follow their evaluation and negotiation of a claim. Quite frankly, after defending every aspect of his or her treatment, time off work, inability to perform household tasks, the usual claimant tires and just wants to end the process, accepting whatever the adjuster's "final offer" may be.
Many insurance companies utilize a computer program known as "Collosus" that evaluates claims and determines the range of value for a particular claim. The computer program arrives at values for claims by comparing the data input by the adjuster with information relating to similar claims contained in its database. The information contained in the database is largely a summary of settlements and judgments for similar cases in the locale of the claim. It contains information regarding the impact that particular injuries have on an average person taking into consideration the severity of the injury, length of time of the usual recovery and usual cost of medical treatment for the particular injury. The adjusters attempt to resolve claims within the range of value determined by Collosus, preferably at the lower end. If the adjuster wants to exceed the value, most must get approval.
In theory, a program that calculates claims' values based on a significant amount of relevant information for the location in which the claimant resides could be helpful to adjusters. Similarly, both defense and plaintiff attorneys perform research regarding verdicts or settlements involving similar cases, preferably within their state, so as to assist in their own valuation of claims. An essential duty for an attorney is to provide his clients with a realistic outcome so that the client can make an informed decision regarding their case when faced with the question of acceptance or rejection of a settlement offer and whether to proceed to trial or not.
The difficulty with a program such as Collosus is that it does not take into consideration the impact that an injury has on an individual. Injuries affect people differently. One person may be particularly impacted by constant back pain and the limitations placed on their activities, while another person may not be seriously impacted. Some have a higher threshold for pain and some may not care that he or she has restrictions on what he can do physically. However, a person who exercised daily prior to an accident but can no longer go to the gym can be particularly affected, especially when exercise was a source of stress relief and enjoyment. A new mother with a baby is particularly impacted when she can no longer lift or carry her baby because of the aggravation of pain caused in her back.
When faced with an insurer that employs Collosus to value claims, it is extremely important for the claimant or his attorney, to provide information to the insurance adjuster that differentiates his claim from the "norm" and average value. By providing information that adds real value to a claim based on an individual's particular situation, Collosus can't be followed because the claim should no longer fit in the rubric of average. If the adjuster refuses to consider facts that distinguish the claim, the claimant then can choose to move forward with litigation knowing that a judge or jury will consider personal factors that impact an individual.
Every case, every insurer, and every adjuster are different. In all but the simplest and smallest cases, it is important to seek the guidance of an experienced personal injury attorney.
According to the Center for Disease Control (CDC), cerebral palsy is the most common motor disability among children in the US. In a number of cases, cerebral palsy is caused by a doctor's negligent failure to perform a C-section when conditions deem it necessary.
Juries around the country have recognized that failure to perform a timely C-section when medically necessary is a significant deviation from reasonable standards of care. As a result they often return sizeable medical malpractice verdicts in favor of affected children and families.
The CDC estimates that one in every 303 children in the US suffers from cerebral palsy. Cerebral palsy is the name for a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy greatly affects a child's development and quality of life. The severity of symptoms can range from moderate to severe, and many affected children require life-long care.
Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. Most children display symptoms of cerebral palsy by age three. Around 20% of cerebral palsy cases are attributed to brain damage during birth. In many of these situations, the brain damage that leads to cerebral palsy is caused by lack of oxygen to the brain, known as fetal hypoxia. According to the CDC, fetal hypoxia accounts for roughly 10% of cases of cerebral palsy. Even though only a small percentage of all cerebral palsy cases can be prevented by the timely performance of a C-section, failure to do so can have devastating results for a child and family.
In a number of cases, possible brain damage from lack of oxygen to the brain can be prevented by the timely performance of a C-section. Situations when a C-section becomes medically necessary include when: (1) the baby does not progress through the birth canal and is deprived of oxygen, (2) the umbilical cord is wrapped around the child's neck and the problem cannot be corrected, and (3) prolonged attempts to induce labor have not been effective and the child remains in the birth canal for too long.
When these problems develop, medical professionals often have mere minutes to react before irreversible damage is done to mother and child. There are several ways that healthcare providers can monitor the child for signs of distress that can lead to deprivation of oxygen to the brain. Fetal hypoxia is often accompanied by a change in the baby's heart rate, which should be carefully monitored by healthcare professionals if there are any signs of complications during birth or if there are risk factors associated with the pregnancy.
Unless doctors and nurses are well trained and vigilant, and the hospital has standard procedures in place, these warning signs may go unnoticed and precious time may be lost. In some situations, there is no way to identify signs of distress in time. However, in a large number of cases, the signs are obvious and the physician or medical team simply does not address the need for a C- section in a speedy manner, causing injury and even death to the child. In these cases, doctors and hospitals deviate from the medical standard of care and may be deemed negligent under civil law.
As indicated, medical negligence is not always or even the most common cause of cerebral palsy. However, if your child suffers from cerebral palsy and you suspect medical negligence, it is important to make the determination as early as possible. An experienced personal injury attorney can help you do just that.
A failure to diagnose a medical condition can be catastrophic to a patient and his or her family. Failure to diagnose occurs in a variety of situation with a variety of medical conditions. A failure to diagnose is not always the result of medical negligence. Even when there is arguably some medical negligence, a medical malpractice lawsuit may be difficult to pursue. However, where the missed diagnosis results in serious injury or death to the patient, then at minimum, the case should be reviewed for possible medical malpractice.
The failure to diagnose cancer is not uncommon. Nor does it necessarily indicate medical malpractice. There are many cases where it most certainly does. A recent medical malpractice verdict in New York provides a good example. In that case, early testing revealed a lump in the breast of a 50 year old mother of 3. The doctor decided to do no further testing concluding that it was not malignant. Instead, he simply instructed her to come back in a year. Upon return 16 months later, the lump had grown to the size of a golf ball.
After extensive radiation and chemotherapy, the cancer went into remission. The injured plaintiff filed suit and a verdict of $15 million was entered against the doctor. Unfortunately, the cancer has now spread to the patient's bones according to news reports. So the seemingly large award may be a hollow victory for the plaintiff and her family.
Had the proper testing been done upon discovery of the original lump, the story would likely be far different for both the patient and the doctor. A simple follow up test to confirm the doctor's erroneous conclusion that the tumor was not malignant would have avoided the spread of the cancer, the pain and suffering of the patient, the massive medical expense associated with treating the cancer, the lawsuit and what may end in the death of an innocent patient.
Unfortunately, this fact situation is far too common. It defies logic why a trained medical doctor at would not seek additional testing upon finding a lump in female patient's breast. But it happens, not just with breast cancer but all varieties of other cancers and other potentially life-threatening diseases.
For patients and families, cases such as these should serve as notice that where the medical profession refuses to act, the patient must be proactive and persistent. This is hard when dealing with medical doctors. We all want to assume that they are infallible particularly when our health or the health of a loved one is involved. But this is far from the truth.
According to the Institute of Medicine, medical errors kill up to 98,000 patients per year. In fact, this study is from 1999 and the problem apparently has grown worse, not better over the years. So it is critical that patients protect themselves. If the doctor will not act to protect the patient, then insist on it to the point of rudeness if necessary. If this doesn't work, find another doctor. Do not assume that the doctor is always right!
And if you are reading this too late to have prevented harm related to a failure to diagnose, contact an experienced personal injury attorney immediately. There are important deadlines that must be met in these cases that when missed will bar your claims completely.
Cesarean section (c-section) deliveries are the most common surgical procedure performed on women, according to the March of Dimes. In fact, about 30% of the 1.4 million live births in the United States are delivered by c-section, often because it is medically necessary to protect the life of the mother or the child.
Doctors have often thought that pre-term delivery, delivery before 37 weeks of pregnancy, by C-section might give a fetus with a slower than average growth-rate the best chance at normal development. These babies were considered too fragile to endure the vaginal birth process without physical trauma or other complications. A C-section was viewed as a protective measure, in which it was believed that treatment for growth issues could be better dealt with after delivery through an Intensive Care Unit.
However, recent research conducted by the Society for Maternal-Fetal Medicine (SMFM) challenged the widely held belief that a C-section delivery poses no health risks for a pre-term baby who is small in gestational age. The study found that higher rates of respiratory distress were noted in these infants delivered pre-term by C-section. In fact, they were found to be 30% more likely to have breathing issues than pre-term infants born vaginally.
Unfortunately, there may be more repercussions to pre-term C-sections than just breathing issues. C-sections performed even at 39 weeks can be problematic for an infant's brain, which is still developing. Thus, pre-term babies delivered by C-section may also face lifelong physical and developmental problems, including motor control issues like cerebral palsy.
What may have been seen as a protective measure for pre-term infants with growth issues may now end up being an improper medical recommendation. The SMFM study suggests that the best outcome for a slow growth rate fetus might be continued gestation in the mother's womb, particularly if there is no imminent danger to the mother or child.
These are all matters that should be discussed with the expecting mother's doctor. This should be a thorough discussion of all the risks and benefits of a pre-term C-section. If a doctor is recommending a pre-term C-section, then the expecting mother at a minimum should ask for a second opinion.
The doctor's office can be an intimidating place. Patients are often reluctant to ask questions. Many do not want to second guess the doctor. However, asking a question and understanding the risks of a procedure is not second guessing. It is simply a part of good patient care. And honestly, with the risks of a newborn at risks, if the doctor is offended and sees it as second guessing, then the patient needs a new doctor.
A decision that could have life-long devastating consequences to the child and the family should not be entered lightly. Expecting mothers like all patients must take steps to protect themselves. After all doctors are not perfect. Most good doctors will appreciate the patient's involvement. Those that do not are those same doctors that at times remind the medical profession of its imperfections with avoidable medical malpractice lawsuits.
Most people are aware of the concept of a statute of limitations period which is a time frame in which a claim must be brought or is lost forever. There are many subtleties that must be understood as well and it is these that cause injured people the most problems.
There are different limitations periods for different types of claims. For example, in New Mexico, there is a three-year statute of limitations period for a personal injury claim. Personal injury claims encompass claims in which a person is injured due to a car accident, slip and fall, medical negligence or malpractice and any other type injury to the person that is because of some other person or entity's negligence.
However, that three-year limitation period has some conditions. The three years applies to claims against a person or entity that is not a public entity. Public entities are municipalities, counties and states, and their agencies. There are also numerous hospitals that are public entities, some obvious which are tied to a state university, such as the University of New Mexico Hospital, and some not, with names that do not immediately suggest that the entity is public.
In cases involving public entities, the statute of limitations for bringing a personal injury claim is two years, with a notice requirement that obligates the injured party to notify the potential at-fault public entity within 90 days for a personal injury, or six months if the claim is for a wrongful death.
To further complicate the matter, in New Mexico there is a statute that is applicable to injury claims against some doctors or healthcare providers, but not all. The Medical Malpractice Act (Act), NMSA 1978, Sections 41-5-1 to -29 (1976 as amended through 2008) is stated to be a patient's compensation fund, that provides excess insurance for medical negligence claims worth more than $200,000, excluding punitive damages.
To qualify as a "qualified healthcare provider" under the Act, the doctor must pay a surcharge and have insurance coverage of $200,000 per occurrence or deposit that amount with the Superintendent of Insurance. Pursuant to the statute covering these healthcare providers, any claim must be brought against the doctor or healthcare provider within three years of the date of the negligent act.
This differs signficantly from the general statute of limitations for personal injury actions which requires the action be brought within three years from when the plaintiff "discovers, or reasonably should discover" the existence of his or her claim. The difficulty with the claim against the qualified healthcare provider is that the potential plaintiff might not even know of the existence of his claim until three years AFTER the date of the negligent act. Under the statute, the claim is barred and the potential plaintiff cannot bring his claim.
While there is no good answer to what is arguably completely unfair to a party who has been injured through medical negligence, the best advice is to consult an experienced personal injury attorney immediately when one has a concern that he or she might have suffered harm through medical negligence.
An attorney can quickly determine if the doctor or healthcare provider is a "qualified healthcare provider" under the Act, and file an immediate application with the Medical Review Commission to evaluate the claim. The filing of the panel application stops the running of the statute until the panel makes a decision. After the decision, the claimant can determine if pursuit of the claim is worthwhile or not.
Babies bring a whole new level of adventure into the lives of their loved ones. Yet, they also bring countless concerns, particularly when they fail to reach conventional milestones, like rolling over, crawling or walking. Combine these with more significant issues as a child ages, like continued difficulty lifting one's head, physical stiffness or an inability to sit without support and the possibility of a motor disability may exist.
Cerebral palsy (CP) is the most common motor disability among children. According to Centers for Disease Control and Prevention, Cerebral Palsy occurs in 1 out of every 303 eight-year-old U.S. children, and approximately 10,000 babies will develop CP each year. It is 1.2 times more frequent in males than females, and the incident rate is significantly lower in Hispanics versus Caucasian or African American children.
Cerebral Palsy is a condition that affects the coordination between the brain and the body's muscles, thus impacting a child's ability to move and maintain posture. It is typically caused when the brain develops abnormally or is damaged during development.
Depending on the area and extent of damage, a child can have a very mild condition which results in awkwardness or clumsiness. More moderate cases may involve involuntary movement, speech problems or muscle tightness. And, more severe occurrences could include sight, hearing or speech impairment, difficulty swallowing, incontinence or mental retardation.
If the damage occurs before birth, it is considered "congenital" cerebral palsy, affecting nearly 70% of the children diagnosed with cerebral palsy. Some potential causes before birth involve infections contracted by the mother, a lack of blood supply and genetic conditions.
If the damage occurs during birth, it is still defined as "congenital"; however, this type only affects about 20% of those with a formal cerebral palsy diagnosis. During birth, a child can have problems from premature birth, delivery complications, having low birth weight or experiencing severe jaundice.
When symptoms appear after birth, typically after 28 days, it is considered "acquired" cerebral palsy. This type affects the remaining 10% diagnosed. Situations that can develop during this time include, a lack of oxygen, bleeding of the brain, or even a brain injury from a fall, car accident or physical abuse.
Of the many ways that a child may suffer cerebral palsy, medical malpractice is only one cause of the condition. The estimates of medical negligence related cerebral palsy vary wildly from 4% to 25%. However, even one case of medical malpractice leading to sever and permanent damage to a child is too many.
If you believe your child has suffered cerebral palsy as a result of medical negligence, you should seek the assistance of an experienced personal injury attorney as soon as possible to insure that your rights and the rights of your child are fully protected.
There have been numerous Actos lawsuits filed throughout the country. Due to the large and growing number of Actos claims, those claims filed in federal court have been consolidated to the Western District of Louisiana. Due to the large number of users of the drug, the number of legal claims is likely to grow exponentially in the coming months and years.
Actos is prescribed for the treatment of Type 2 Diabetes. Actos has been hugely successful financially for its manufacturers. Both the root of the success of the drug and the coming wave of lawsuits is evident from a quick look at the numbers on Diabetes in the United States.
The 2011 National Diabetes Fact Sheet issued by the Centers for Disease Control and Prevention (CDC) provides some remarkable data portending the future of the Actos lawsuits. Unfortunately, the data would suggest a rather bleak outlook for the scope of the potential harm to the public caused by this blockbuster drug.
The National Diabetes Fact Sheet suggests that over 25 million Americans suffer from diabetes. This represents over 8% of the United States population. There are a number of states whose rates are above 15%. These states and their people are likely suffer the greatest harm associated with Actos use.
Of the 25 million suffering from diabetes, over 18 million have been formally diagnosed according the CDC. These numbers suggest the basis for the huge market success of Actos. They also point to the many unsuspecting users of Actos from a potential market of 18 million diagnosed patients who were unaware of the dangers of prolonged Actos use.
It is alleged that Actos causes bladder cancer. In fact, studies have suggested that the risk of bladder cancer may increase by up to 40% for those using Actos for more than one year. The risk appears to be directly related to dosage levels and duration of use. In other words, those that used it the longest and at the greatest dosages will have the greatest risk of Actos induced bladder cancer.
If you or a loved one has been on Actos for over one year, a checkup with the doctor is surely in order to review your medication. Diabetes is a horrible and life-threatening disease and Actos is in fact it appears effective at treating diabetes. However, the risk of cancer may outweigh the risk of the diabetes in light of alternative treatments.
This risk assessment is between you and your doctor and you have an absolute right to understand these risks. And this failure to inform patients, and doctors for that matter, of the risks associated with extended Actos use lies at the heart of the Actos litigation.
If you have any signs of bladder cancer, then you should get to your doctor immediately. As with all cancer, early detection and treatment is key to survival. In the unfortunate event that you have used Actos for over a year and do learn from your medical professionals that you have bladder cancer, you should contact a personal injury attorney right away to insure that you, your claims and your family are protected.