New Mexico Injury Attorney Blog

The contingency fee arrangement plays a pivotal role in allowing personal injury plaintiffs access to the courthouse. In fact, without contingency fees, injured persons would for the most part have absolutely no recourse for their injuries and damages.

Of course this is what defendants would like to see. This explains the unrelenting attacks on trial lawyers by insurance companies, the Tort Reform movement, the U.S. Chamber of Commerce, and a long list of so-called small business advocacy groups.

The arguments have been so persistent and so loud for so long that many have taken their truth for granted. In fact, the arguments for tort reform and personal injury liability caps are based largely on myth. These myths were hatched and nurtured by these groups who represent corporate America and the insurance industry. The goal is maximize corporate and insurance industry profits with little regard for the safety of the public. In short, the goal is to keep injured persons out of court.

Among the greatest myths, and one that is particularly popular even among the public, is that the greed of trial lawyers is draining small business. Because the myths and misrepresentations are so numerous and profound, it is really hard to rank them in order of deception. However, this myth ranks at or near the top.

The focus of the "greed" argument has been on the contingency fee arrangement. Remarkably, the very conservative Fourth Circuit Court of Appeals shot down this argument in the 2010 case of Pellegrin v. National Union Fire Insurance. The case involved a $18 million auto accident settlement on behalf of Mark Pellegrin who suffered severe and permanent brain injuries, and quadriplegia. His injuries were so great that he can communicate only through facial expressions. He will be totally dependent for life upon the care of others for even basic necessities such as bathing and feeding.

Liability was hard fought by the insurance companies. According to the two plaintiff's attorneys, permanent, each had spent over 1000 hours of time on the case. There was a standard one-third contingency fee arrangement. Over the strong objections of the plaintiff's father and guardian, the district court reduced the fee to a mere 3%.

The plaintiff's were forced to appeal to the 4th Circuit Court of Appeals. The 4th Circuit is notoriously conservative and the plaintiffs were rightfully extremely concerned. In addition, Public Justice became involved fearing that the 4th Circuit would use the case as a platform for a full frontal assault to the contingency fee arrangement.

To the surprise of all on the plaintiff's side, the 4th Circuit reversed the district court's ruling. The Court repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Court noted that this case in particular illustrates the reality that an injured individual would have absolutely no recourse for his or her injuries in a case like this. Clearly, there are very few if any other than corporate plaintiffs that would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

Of course, this is well known to the Tort Reform movement. In their perfect world, the courts would be a playground for only the rich and powerful. And perhaps most importantly for all those skeptics out there, the millions of dollars of lifetime medical care for Mr. Pellegrin and others like him would be left to the taxpayer.

Collins & Collins, P.C.
Albuquerque Attorneys

With winter storms approaching, so too are the inevitable slip and fall accidents on ice that come with them. These accidents will occur in all manner of situations. They will occur around the home on driveways and sidewalks. They also commonly occur at public facilities such as malls, strip centers, gas stations and every other variety of public space.

The injuries from a slip and fall on ice range from the mundane to the catastrophic. Falls on ice often come with knee, wrist and back injuries. Far too often, they even result in serious traumatic brain injury.

Often the first question the injured person or the injured person's family will have is whether the property owner/manager can be held liable for the injuries. The answer is dependent upon the circumstances of the case. The personal injury cases dealing with ice and snow have been long established in the New Mexico Supreme Court cases of Proctor v. Waxler (1972) and Crenshaw v. Firestone (1963).

Essentially, the court has ruled that snow and ice are such obvious hazards that pedestrians have a duty to protect themselves from harm. In fact, the court has ruled that the property owner/manager has no greater duty to protect the visitor than the visitor has him or herself.

The courts framed the issue in terms of assumption of risks. In other words, the pedestrian should know of the risk of ice and snow and by venturing out into the ice and snow assumes the risks of falls. The court in Crenshaw remarkably ruled that this is the case even if the owner/manager has knowledge of the risks and an opportunity to correct the dangerous conditions.

Both cases involved obvious risks of snow and ice. The accidents occurred soon after a winter storms. Neither addressed the situation of black ice which is clearly the most hazardous condition following a storm.

Under the law, a pedestrian indeed has an equal duty to protect him or herself from known dangers. However, black ice is typically not a known danger to a pedestrian. The essence of black ice is that it is neither apparent nor obvious to the eye.

In cases of black ice, the owner/manager will have a much higher duty. In fact, it is the owner/manager alone who will have knowledge of the propensity for black ice on the property. It is also the owner/manager that is in the best position to both detect and correct the dangerous condition.

Of course, if a pedestrian is aware of the black ice and ventures on to it despite the risks, then again there will be significant issues regarding liability and comparative negligence. In fact, the claim could be barred completely when there is a high level of negligence on the part of the pedestrian. More likely, the fault and liability would be apportioned according the comparative negligence of each. With catastrophic injuries, even a high level of comparative negligence will not completely bar recovery.

There is a widely held misconception that there is strict liability for injuries suffered in a slip and fall accident, particularly when ice is involved. This is not the case. These cases rest on the negligence and comparative negligence of the parties. Both have a duty. And that duty will vary substantially from one case to the next.

Collins & Collins, P.C.
Albuquerque Attorneys

Children are typically involved in a myriad of activities, including sports; thus the likelihood of injury is ever present. Even a slight bump to the head can become a situation in which the child will need emergency medical treatment. Generally, a first time minor concussion will have little long term consequences. However, as anyone knows from following the NFL, boxing, or other professional sports, it is the secondary concussion that can have devastating and permanent consequences.

Concussion is considered a traumatic brain injury, resulting from a blow, jolt or bump to the head or body. The brain moves quickly back and forth in this situation, possibly causing bruising, nerve damage and even blood clots. Most concussions do not result in a lack of consciousness, which may further delay treatment. Prompt recognition of concussion and quick response to stabilize the child can prevent further injury and even death.

Because there are usually no outward signs of concussion, they are difficult to identify. Even doctors have difficulty diagnosing them, because brain scanning equipment does not specifically identify concussions. Yet, children can report symptoms that are helpful in determining if a concussion exists. Likewise, parents, coaches or other observers can help recognize the signs of concussion.

The warning signs of concussion usually fall within four categories: thinking/remembering, physical, emotional/mood and sleep disturbance.

The thinking/remembering category includes:

• confusion or concentration problems
• difficulty recalling events before or after the injury
• responding slowly to questions
• being confused or unsure of current activities

The physical category consists of:

• pressure in the head or headache
• dizziness or balance problems
• nausea or vomiting
• sensitivity to light and/or noise
• lack of energy

The emotional/mood category involves:

• an increase in emotion
• sadness
• anxiety or nervousness
• irritability

The sleep disturbance category includes:

• sleeping less or more than usual
• trouble falling asleep

You should seek immediate medical attention if your child presents any of these signs. It is important to note that some of these symptoms may not appear immediately after the child suffers the injury. Some symptoms may develop after several days, weeks or even months.

Because children are children and many will not let anything, even brain injury, get int the way of their fun, parents, teachers and coaches to educate themselves on the signs of concussion. We owe it to our children to err on the side of caution no matter how badly they want to get back on the field.

The CDC has plenty of materials for just this purpose. To learn more about youth and concussions, visit the CDC website where you find much of the information you need.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There are many reasons to wear a seatbelt other than the laws requiring it. The top ten reasons for proper seatbelt use are apparent from the following statistics from a study at James Mason University:

1. One in five drivers are involved in an auto accident each year.


2. Auto accidents are the leading cause of death for those under the age of 45.


3. Close to 35,000 people die each year in auto accidents, half of whom would have been saved by the use of seatbelts.


4. For every one percent increase in the use of seatbelts, 172 lives are saved.


5. Seatbelts reduce auto accident fatalities by 60-70 percent.


6. A person is 25 times more likely to die when thrown from a vehicle.


7. Children are often killed by being crushed by unrestrained adults.


8. The most common injuries to children in car accidents are head injuries resulting in brain damage, traumatic brain injury, epilepsy or death.


9. Over 80% of child fatalities in auto accidents would have been prevented by the proper use of seatbelts or car seats. Unfortunately, less than ten percent of children are properly restrained.


10. Seatbelts may provide the greatest and only protection against DWI drivers. This is very important in New Mexico which historically has among the worst DWI problems in the country.

A seatbelt may very well save your life in the case of a car accident. If that is not enough, it may save your child. Just as importantly, it could minimize physical injuries. In New Mexico where drivers are chronically uninsured or underinsured, minimization of physical injuries may very well save you and your family from financial disaster. There many more good reasons for wearing a seatbelt and none that would suggest otherwise.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The 10th Circuit recently addressed the reduction of state Medicaid liens against personal injury settlements in Price v. Wolford. The case involved a medical malpractice action brought on behalf of child that suffered severe brain injuries during delivery. The case settled for $1.1. million for the birth related injuries. The Oklahoma Health Care Authority (OHCA) asserted a Medicaid lien of $544,282.26 against the settlement. The district court reduced the Medicaid lien to $67,666.67 in proportion to value of the settlement in relation to the total value of the claim as well as for non-medical related damages.

Essentially the district court relied upon the plaintiff's valuation of the child's future medical costs at $12 million. The reduction also relied of Arkansas Dept. of Health and Human Services v. Ahlborn where the Supreme Court asserted that Medicaid may recover only against that portion of the settlement reflecting recovery of medical expenses. Compensation for other damages such as lost income, pain and suffering, loss of enjoyment of life and so on are beyond the reach of the lien. Due to the recovery of only a portion of the claimed medical expenses as well as the existence of significant non-medical damages, the district court substantially reduced the OCHA lien.

OHCA appealed on several grounds. The 10th Circuit denied their appeals on all but one issue which was whether the plaintiff had provided sufficient evidence of the value of the claim to justify the lien reduction over the objections of OHCA. The 10th Circuit found that insufficient evidence had been presented to justify the valuation. Thus the case was sent back to district court for the purpose of valuating the child's claim.

Notably, OHCA was present at the settlement conference where the claims were settled. It is not clear why the Medicaid lien was not addressed at that time. Due to the difficulties of dealing with Medicaid and Medicare, and the harsh consequences of failure to properly negotiate liens in advance of settlement, it is equally unclear why these issues were not addressed prior to the settlement conference.

In light of the fact that OHCA was present at the settlement conference, there may have been a dispute as to the value of the lien at that time. Perhaps, OHCA was taking an unreasonable position on its lien refusing the legally mandated reduction under Alhborn and federal statute. In any event, failure to reach an agreement on the lien at settlement laid the foundation for OHCA's later unreasonable intervention and demand for the full value of its lien.

This case points out the importance of negotiated lien reduction in advance of any settlement. Unfortunately, these liens may dictate the settlement options. In the event that Medicaid takes a unreasonable position as OHCA has done in this case, settlement may not be possible without the intervention of the court. This intervention should be sought in advance of settlement to avoid the unfortunate outcome here.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

A settlement of $20 million was reached in March 2009 in the a lawsuit against Burger King for the devastating brain injuries suffered by a 12 year old boy in a 2005 fall from a play structure inside a Burger King facility.

The boy was playing with his 5 year old sister on the play equipment when he fell hitting his head on the tile floor. There was no protective matting below the structure to protect against such injuries. The play structure had monkey bars and a fireman's pole clearing presenting risks of children falling from the structure.

The jury found that the restaurant should have provided some kind of protective covering on the floor rather than the hard tile on which the child fell. In addition, there were no warning signs around the equipment as present in other such facilities. Finally, there had been at least one other fall at the facility showing that the accident and injuries were foreseeable and preventable.

The 12 year old boy suffered severe traumatic brain injury. The injuries are permanent. The child will require a life-time of medical and rehabilitative services. The jury obviously took these permanent injuries and future medical expenses into account in the enormous $20 million verdict.

It is well established under the law of premises liability and negligence that playgrounds must be made safe for children. Parents trust the safety of play equipment every day. The duty to maintain a safe play environment as well as liability and fault for any injuries suffered by the failure to keep this duty lie with the provider of the equipment. This includes restaurants, retail establishments, public playgrounds, and other facilities that offer the use of play equipment to children. In addition to liability for failure to maintain a safe environment for play equipment as was established in this case, manufacturers of play equipment are held to a very high standard of care under products liability law.

If your child is seriously injured in a playground accident, liability for damages may be spread across a number of different parties. It is important to identify all of these the parties from the beginning to avoid possible unexpected apportionment of liability at trial after the statute of limitations has long passed. In case of apportionment of liability to other parties, full recovery for all damages may not be possible if those other parties were not named in the lawsuit.

www.CollinsAttorneys.com

A jury awarded a family $7.4 million for the brain damage that their child suffered as a result of an untreated infection at birth. The child, Paris Campen, suffered brain damage when the neonatal intensive care unit at Cedars-Sinai Medical Center failed to properly treat the newborn's infection.

As a result of the medical malpractice of the medical staff in failing to treat the birth related infection, the child developed meningitis which caused the child permanent brain damage. The child will have a permanent shunt in her brain to prevent excess fluid and further brain damage. In addition, she will undergo a lifetime of behavioral and physical therapy.

The child's mother, an emergency room doctor at UCLA Medical Center, had raised the issue of infection with the doctors at Cedars Sinai. They ignored her. This kind of arrogance is often at the root of medical malpractice and medical negligence. Doctors often ignore their staff members and nurses, who many times due to close contact with the patient are more knowledgeable of the patient's needs than the doctor. The arrogance in this case is even more remarkable in the doctors' refusal to listen to the child's own mother who happened also to be a doctor.

Meningitis in newborns is extremely serious. In addition, this type of birth injury is not so uncommon that it should not be checked if even remotely possible. Immediate diagnosis and treatment is essential to prevent, hearing loss, learning disabilities, and in this case brain damage. Failure to properly diagnose and treat meningitis in newborns is a significant departure from the standard of care expected in the medical profession.

Though this case occurred in California, these same issues arise in Albuquerque and throughout the state of New Mexico. Medical malpractice lawsuits in New Mexico are challenging to say the least. Doctors are given every benefit of the doubt under the law. In the case of public facilities, there are other layers of protection include Tort Claims Notice Requirements and Tort Claims limits. Moreover, doctors are highly respected throughout society so that juries are reluctant to find fault with physicians. The same type of arrogance that drives doctors to ignore their staff, nurses, mothers and fellow doctors also results many times of an absolute denial of responsibility even in clear cases of negligence. Couple all this with all the nonsense regarding tort reform, and the constant barrage of misinformation regarding the strain that these types of cases place on the medical profession, and medical malpractice claims of any kind face an uphill battle.

However, in cases like this where a child is permanently harmed through the gross negligence of a medical staff explained only by the refusal of the doctors to acknowledge the concerns of a mother and fellow medical professional, the jury obviously felt the doctors' care fell so far below the medical industry standard care that a strong message had to be sent.

A verdict, even a $7.4 million verdict will never fully compensate a child and a family burdened with a lifetime of suffering. However, these verdicts serve society in forcing a medical profession buttressed by the support of tort reformers and opportunistic politicians to behave responsibly. The medical profession must recognize that with its great privilege comes great responsibility, perhaps at least in this case, the greatest responsibility of all which is to protect defenseless newborns and their families from preventable harm.

www.CollinsAttorneys.com

An Ohio jury awarded an 8 year old and his family the largest medical malpractice award in the state's history. The 8 year old child, Leondo Stanziano, suffers from cerebral palsy as result of the medical malpractice of the hospital where he was born. The jury awarded Leondo and his family $31 million in damages.

During his delivery in December 2000, Leondo was deprived of oxygen for 18 to 20 minutes. The oxygen deprivation caused serious birth injuries including permanent brain damage and cerebral palsy.

Cerebral palsy permanent disability involving movement control and muscle coordination disorders. In addition, it causes seizures, sensory impairments and severe cognitive limitations. It is typically the result of birth injury related brain damage. Leondo will never walk or talk and will require 24 hour care for the remainder of his life.

The lawsuit was filed on behalf of the family and Leondo against the hospital as well as the doctor for a broad range of damages for medical negligent. The suit alleged that the doctor and the hospital knew of the mother's high risk for uterine rupture but failed to properly monitor the delivery. In addition, the suit alleged the labor inducing drug Pitocin was negligently used causing hyper stimulation of the patient's uterus which ultimately did burst. Expert testimony established that the hospital's nursing was negligent in continuing Pitocin despite abnormal contraction patterns throughout labor and delivery causing enormous stress on the uterus and prior birth related incision scars.

The family's expert testified that Leondo's life expectancy would be 70 years. Based upon the 70 year life expectancy, the plaintiff's attorney asked for an award of $2.5 million in future lost earnings and $25.9 million in future health care costs. Remarkably, the defense countered saying Leondo would only live to be 20 due to his injuries suggesting to the jury that Leondo should be awarded only $7000/year for medical care over the remainder of his severely shortened 20 year life span.

Apparently, the jury was not pleased with the callousness of the defense's argument. Nor were they moved by its twisted logic that somehow Leondo should receive far less for his injuries since he would soon be dead anyway as a result of the hospital's negligence. The jury did not buy the hospital's argument that its liability should be reduced in essence because the hospital absurdly argued Leondo had suffered greater harm than claimed by the plaintiff.

Unfortunately, many times the defense will take this position attempting to reduce human loss to a simple calculation of future medical costs and lost earnings. These are calculated just as would be an annuity. Often, this logic will carry the day at trial. They then ironically try to argue for a greatly reduced life span to minimize these damages over the life of the injured person.

The jury in this case clearly looked past the simple mathematical formulas upon which the defense attempted to value Leondo's life, health and future. Clearly, the plaintiff's attorneys kept the focus on the human loss and out of the realm of mathematical annuities where the defense would prefer to keep the focus.

www.CollinsAttorneys.com