New Mexico Injury Attorney Blog

By law, Medicare will claim a lien against any personal injury settlement for medical expenses paid for treatment related to those injuries. In addition, Medicare will claim a lien on future medical expenses related to future treatment for those injuries. The lien on future medical expenses is the Medicare Set-Aside.

It is extremely important to begin working with Medicare on the lien issues well in advance of any settlement. Medicare is often quite reasonable in addressing those liens. This is important for a number of reasons, not the least of which is the fact that Medicare often greatly overstates its liens, often including expenses related to medical conditions unrelated to or which pre-existed the accident.

The same holds true for future medical expenses. Medicare will often assert a blanket lien over the entire settlement amount. In cases where significant future medical expense is required, the future medical expense could actually exceed the amount of the settlement.

This is not that uncommon in cases of very serious injuries where significant and sometimes permanent medical treatment is required. However, there are numerous potential areas for negotiation with Medicare's over inclusive liens. For instance, in cases of serious personal injury, there are often very significant recoverable damages unrelated to medical expenses, either past of future. Medicare is not entitled to claim liens against settlement amounts that are unrelated to medical expenses paid or to be paid by Medicare.

Likewise, in cases involving serious personal injury, the actual settlement is often well below the value of the claim. This comes up in cases of underinsured drivers, underinsured property owners, damages caps in medical malpractice claims, tort claims caps, and so on. In these cases the medical expenses, past and future, may actually exceed the recovery.

In those cases, there are strong arguments that Medicare must take a pro rata reduction in its liens in proportion to the settlement amount and the actual value of the case. It would be patently unfair to allow Medicare to reap the benefits of an injured person's efforts to recover, while simply standing on the sideline awaiting payment in full on its claimed liens.

There will often be other grounds for negotiation of Medicare liens including the future set-asides beyond these two examples. Again, Medicare is often quite reasonable so long as the negotiations occur in advance of the final settlement, and most certainly before distribution of any funds. On the other hand, failure to address them in advance can be disastrous with huge potential fines to the injured person, his or her attorneys and even the insurance company.

In short, though Medicare does have rights to lien a personal injury settlement for set-asides for future medical treatment and expense, there are protections for an injured person. These are equitable in nature and Medicare more often than not will work out a fair and equitable outcome on its liens if properly approached to do so. If they are not approached, then naturally there may be a very different outcome.

If you have suffered personal injuries in an accident and there is a potential settlement, it is very important that you contact an attorney experienced in handling medical liens, including Medicare and Medicaid.

Related Reading:
Eleventh Circuit Addresses Medicare's Responsbilities in Lien Negotiation
Medicare/Medicaid Lien Reduction for Attorney Fees
10th Circuit Addresses Medicaid Lien Reduction in Personal Injury Settlements

Collins & Collins, P.C.
Albuquerque Attorneys

Say you have been injured in an accident and have settled your claim with the insurance company. Down the road you discover you either still need additional medical care for your injuries, or you discover new injuries you were not aware of at the time of the settlement. Can that settlement agreement be "re-opened" or can you file another lawsuit for additional damages?

The answer is likely an emphatic "No". Prior to settlement, and most definitely prior to issuing you a check, the insurance company or opposing attorney will insist on a settlement agreement. This is typically, in the absence of an agreement to the contrary, an agreement in full and final settlement of claims. It is generally impossible to attempt to collect for additional damages after a settlement agreement has been signed.

The reason for this is that the defendant, usually an insurance company, agreed to settle your claim and make payment to you in exchange for a full release from all past, present and/or future claims stemming from the incident. The settlement agreement you signed most certainly included language similar to the following:

[Y]ou agree to waive your future right to make a claim or sue for any and all claims associated with the incident being settled. This includes claims unknown at the time of the signing, or for the worsening of, or for unknown future medical effect or injuries arising out of the claim or incident.

This binding effect of a settlement agreement is one of the reasons that it can take so long to settle a personal injury claim. Before entering into a settlement agreement it is absolutely essential to completely understand the extent of your injuries, including the need, if any, for future medical care. Any "future medical expenses" must be projected and figured into the settlement amount. This should be done by your treating physician and must include the following:

1. The likelihood that you will need future medical care.

2. A thorough description of the type and extent of the care you will need.

3. An estimate of the cost of the care taking into consideration how long you may need care and your life expectancy if it is believed you will need ongoing care for the remainder of your life.

It may not seem fair that you cannot make additional claims down the road for future medical care or injuries that were unknown at the time you signed the settlement agreement. However, if a settlement agreement could easily be undone by one of the parties months or even years down the road, then the parties could never feel that the claim is truly settled. The incentive for parties to enter into settlement agreements might disappear.

Furthermore, settlement agreements are an essential part of our legal process. Without settlement agreements our court system would be bogged down with all manner of trials, including personal injury lawsuits. For this reason the courts depend on settlement agreements to maintain the integrity and efficiency of the judicial system.

Binding settlement agreements provide benefits to all parties involved. Keep in mind that careful preparation of your case before entering into a settlement agreement, including thorough documentation of all past, present and future damages, is your best insurance against later ending up disappointed with your settlement. An experienced personal injury attorney will be able to walk you through this process to insure a fair settlement of your claims.

Related Reading:
Maximum Medical Improvement and Your New Mexico Personal Injury Settlement
Fair Settlement of Personal Injury Claims is More Math than Wrath!
Medicaid Liens: What is the Obligation in a Personal Injury Settlement?

Collins & Collins, P.C.
Albuquerque Attorneys

Maximum Medical Improvement, commonly referred to as MMI, is a term frequently used in personal injury cases. Maximum Medical Improvement refers to the point in your medical treatment when your doctor determines that further medical treatment will not improve your condition. MMI is therefore, an indicator of the permanency of your injuries. While there may be slight improvements in your condition, it is not expected that further treatment will result in any significant improvements.

Reaching MMI, however, does not necessarily mean that your medical care is complete. Many people require ongoing treatment and medical expenses related thereto, including physical therapy, pain management, or the need for assistive devices in order to maintain their current health and ability to function.

Reaching MMI also does not mean that your condition will not get worse. Many injuries can lead to secondary injuries or conditions. For instance, in many cases the development of arthritis in an injured body part is common. When this happens you may experience a worsening in pain or a loss in ability to perform certain physical activities. Once you have reached MMI your doctor will be best able to determine whether your condition may worsen and the need for future medical care.

Let's look at an example. Say you are injured in a car accident and suffer an injury to a disc in your back. This type of injury is painful and in many cases can cause numbness in your legs. After having surgery to repair the disc, the numbness in your legs improves but you continue to suffer from pain. After undergoing physical therapy and follow up care with your doctor your pain persists. At this point, perhaps six months or a year after your injury, your doctor may conclude that additional surgery would not provide any further benefit and your condition is not likely to improve.

In this situation, your doctor may conclude that you have reached maximum medical improvement. While your condition is not expected to improve your medical care is not complete. You will require continued pain management, which may include pain medication and a regime of exercise. But at this point your doctor is in a position to better evaluate your condition, how it will impact your life, and the need for future medical care.

Keep in mind that in most cases the insurance company will also have you examined by a doctor they hire to evaluate your injuries and testify as an expert witness. These doctors will generally testify that you reached MMI shortly after your accident and that medical bills related to the accident should be cut off at that point.

For this reason when you reach MMI there are several things that your doctor should evaluate and include in his/her medical report. A complete medical report including all of the following will ensure that you receive the full compensation for your injuries.

• Impairment rating, this is a rating reflecting the percentage of disability for injury. There may be full or partial as well as temporary or permanent impairment ratings. In addition, there may be a rating for individual body parts or organs.


• Work restrictions, specifically setting forth what you can and cannot do and whether you can continue in your present occupation or must seek new a new occupation. (Note that if your injuries require you to change occupations you may also need to have a separate evaluation to determine whether additional education or training is necessary for you to return to the work force.)


• Future medical care, including the types of treatment you are expected to need and the cost of such care.

Keep in mind that reaching maximum medical improvement can take time depending on the severity of your injuries. Injuries to several parts of your body will heal at different rates and you will reach MMI for your various injuries at different times. It is important to be sure that you have recovered from all your injuries before being declared to have reached maximum medical improvement.

In short, reaching MMI allows your doctor to predict your future damages, including future medical expenses, lost wages, and pain and suffering. Until you have reached MMI and your damages have been properly evaluated it is nearly impossible to reach a fair settlement or jury verdict for your claim. An experienced personal injury attorney will be able to discuss these issues with you as your case progresses.

Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
Optional Auto Insurance Coverage Often the Most Beneficial to Your Family
The Importance of MedPay Insurance Coverage in Car Accidents

Collins & Collins, P.C.
Albuquerque Attorneys

The twentieth century saw a 99% reduction in the risk of death associated with pregnancy, One technology that played a major role in this reduction is the appropriate use of the cesarean section when the unborn baby shows signs of fetal distress. The medical team taking care of the mother and baby are responsible for monitoring the progress of the labor and delivery for signs of fetal distress, and when appropriate, performing a cesarean section.

Many things can happen during birth that cause fetal distress and the need for a cesarean section. A few include: an infant that is too large to pass through the birth canal; labor not progressing because the cervix has stopped dilating; and/or the infant is in a breech position, with its feet coming out first instead of the head.

Monitoring of the fetal heart rate is one of the important ways that the medical team monitors the baby during labor and delivery. Changes in the fetal heart rate are an indicator of fetal distress and that the infant is not getting sufficient oxygen. This is referred to fetal hypoxia. When this situation arises, a decision to perform a cesarean section may be critical to the health of the infant. An infant suffering from hypoxia during delivery can develop cerebral palsy.

Cerebral palsy is a crippling condition that affects the brain and central nervous system. The symptoms of cerebral palsy can be mild in some cases. In severe cases, cerebral palsy can cause uncontrollable reflex movements, intellectual disabilities, seizures, vision and hearing problems and other very serious physical injuries and permanent disabilities.

Cerebral palsy is one of the most common causes of permanent disability in children. However, not all children with cerebral palsy will suffer from the same problems. Some will have more severe problems while others may only experience mild difficulties.

The National Institute of Health recently published a statement concluding that the appropriate use of cesarean section when there are signs of fetal distress has reduced the number of cases of cerebral palsy even though the overall rate of cerebral palsy has not decreased. The NIH explains this anomaly by pointing out that cesarean sections have also increased the overall survival rate of newborns.

The healthcare providers caring for the mother and infant during the labor and delivery process owe the mother and the baby a legal duty of care. If the healthcare providers do not respond to an emergency situation, such a fetal distress/fetal hypoxia, in accordance with the accepted standard of care, the healthcare provider has violated this duty of care.

When this happens and the mother or infant are injured the healthcare providers may be liable for medical malpractice and responsible for the past and future medical costs along with other recoverable damages associated which in the case of severe cerebral palsy can be extraordinary.

If you believe your child has suffered birth injuries as a result of the failure to provide a timely C-section, an experienced personal injury lawyer can review the circumstances of your case with you and ensure that your legal rights and the rights of your child are protected.

Related Reading:
Placental Cerebral Infarction - A Serious and Sometimes Avoidable Birth Injury
Negligent Failure to Perform C-sections Resulting in Cerebral Palsy
Risks of Pre-Term C-Section Should be Understood by the Patient

Collins & Collins, P.C.
Albuquerque Attorneys

Medical malpractice, or medical negligence, happens when a heath care provider fails to meet the accepted standard of care when providing medical treatment to a patient, and as a result of that failure, the patient is injured. When this happens the patient can file a lawsuit against the health care provider for compensation for the injuries sustained by the patient. These injuries are commonly referred to as damages.

Under New Mexico law the amount of damages, and how those damages are paid, and who they are paid by are in many cases regulated by statute. The statutes apply to Qualified Healthcare Providers only. Those medical providers that are not Qualified Healthcare Providers are not protected by the rather lopsided protections of the statutes and the caps and other restrictions on medical malpractice damages.

For Qualified Healthcare Providers, New Mexico law states that a patient can recover both compensatory and punitive damages in a medical malpractice claim. Compensatory damages include both economic damages and non-economic damages. Examples of both include financial losses, pain and suffering, loss of companionship, and disfigurement. New Mexico law limits the total amount that can be awarded for compensatory damages to $600,000. This amount, however, does not include damages for the cost of future medical care.

How is the Payment for Future Medical Care Handled?

Under New Mexico law (NM Stat § 41-5-7) the issue of the value of future medical expenses is not decided by the jury and is not included in any award for damages made by the jury to an injured patient. The jury is only told whether future medical care is required, but evidence about the cost of future medical care is not part of the evidence considered by the jury. In fact, it is the court that will later estimate the value of the future medical care reasonably necessary. The court's estimate is included in the record as a separate finding but it is not included in any award or judgment made to the patient.

Once a judgment is entered by a Court, and the patient is found to need future medical care, the patient is provided with all medical care necessary as a result of the health care provider's malpractice. Two important stipulations in the statute regarding the payment of future medical expenses are as follows:

1. The payment for future hospitalizations is limited to payment for a semi-private room.
2. Future medical expenses are paid only as they are incurred by the patient.

It is important to know that this law does not stop a patient from entering into a settlement agreement with a medical provider. This law applies equally to claims resolved in court as well as claims that have been settled between the patient and provider where it is agreed upon that the patient will need further medical care.

Under New Mexico law the health care provider is responsible for all medical care until the total payments made by the provider, or on behalf of the provider, equals $200,000. Any additional medical expenses are paid through what is called the New Mexico Patient's Compensation Fund.

New Mexico's Patient Compensation Fund.

The New Mexico Patient's Compensation Fund (also referred to as PCF) was established by the Mexico Medical Malpractice Act of 1976. The Patient Compensation Fund provides an excess layer of professional liability coverage for health care providers that are members of the fund (Qualified Healthcare Providers). This Patient Compensation Fund is administered by the New Mexico Superintendent of Insurance. This PCF gets its money through premiums charged to the health care providers that are a member of the Fund.

If you or a loved one is a victim of medical malpractice, it is important to consult with and experienced medical malpractice attorney to determine whether the medical provider is a Qualified Healthcare Provider. In addition to this critical determination, there are unique and strict deadlines on medical malpractice claims which will bar a claim completely when missed.

Related Reading:
MedMal Cap Protection in New Mexico Protects both Doctors and Medical Corporations
Caps on Medical Malpractice Damages Do Not Lower Insurance Premiums or Healthcare Costs
Medical Malpractice Reform Harms Patients and the Taxpaying Public

Collins & Collins, P.C.
Albuquerque Attorneys

Even at low speeds, motor vehicle-pedestrian accidents can result in very serious personal injuries or wrongful death. The National Highway Traffic Safety Administration recently released statistics stating that approximately 64,000 pedestrians are injured by vehicles every year in the United States, and of those injured, approximately 5,000 pedestrians are killed each year.

As in any auto accident, when a pedestrian is injured there are several issues that must be addressed right away. These include liability, comparative fault (if any) of the pedestrian, and the availability of insurance coverage to pay for accident-related damages.

Liability
When it comes to determining liability, New Mexico is a fault-based system. This means that the party at fault for an accident will be responsible for any resulting personal injury and/or property damage he or she causes. New Mexico law also recognizes a principle called comparative negligence. This means that any compensation to the injured party will be reduced to the extent that the injured party's action contributed to the accident. For example, if you are 20% at fault for an accident you will only be compensated for 80% of your injuries.

When it comes to pedestrian accidents, many people believe that because pedestrians have the right of way that the pedestrian can never be at fault for an accident. This simply is not true. Just like a driver, pedestrians have a duty to exercise reasonable care, and failing to do so is considered negligent. Keep in mind that even though there is some negligence on the part of the pedestrian, the pedestrian can still recover damages against the negligent driver. In cases of auto-pedestrian accidents, these recoverable damages can be quite substantial even with the offset for comparative negligence.

Insurance Coverage
If you are injured as a pedestrian by a negligent driver you will likely be able to file a claim with the driver's insurance company to cover the cost of your medical care, lost wages and other damages caused by the accident.

New Mexico law requires that all drivers maintain insurance coverage. Liability coverage provides payment for medical treatment, lost wages and other damages. New Mexico law requires that everyone carry at least $25,000 per person, and $50,000 per accident of bodily injury liability coverage.

Despite the legal requirement that everyone carry certain basic insurance coverage there are times that an injured pedestrian might have to look to other sources of coverage for compensation. This happens when 1) someone doesn't carry the required bodily injury liability coverage, 2) the limits of liability coverage are not enough to cover the damages associated with the injuries, 3) when there is a hit and run accident and the at-fault driver cannot be identified, or 4) when the pedestrian is at fault. In these circumstances some additional coverage options include medical payments coverage, uninsured/underinsured motorist's coverage, or your own health insurance coverage.

Medical Payments Coverage

When necessary you can seek coverage under your own auto insurance policy's medical payments coverage. This is coverage that pays for medical treatment incurred by the insured and any family members resulting from an accident.

Uninsured/Underinsured Motorist Coverage

New Mexico law does not require that you purchase Uninsured/Underinsured Motorist Coverage, but it is generally an inexpensive coverage that can be purchased as supplemental coverage to your liability and collision coverage.

Uninsured/underinsured motorist coverage is meant to protect you if you are in an accident with an at-fault driver that either does not have insurance coverage or whose coverage limits are inadequate to cover your damages. For example, if the at fault driver has the state minimum $25,000 in coverage but your damages are in excess of $40,000 your underinsured motorist coverage will pay the remaining $15,000 dollars.

Pedestrian-auto accidents are typically quite severe. This article is meant only as an overview. If you or a loved one have been injured in such an accident, you should immediately seek the counsel of an experienced personal injury law attorney.

Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
New Mexico Leads the Nation in Uninsured Motorist
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Albuquerque Attorneys

Now that you have gone through the legal proceedings and obtained a judgment for your damages, does payment follow automatically? Not necessarily. Whether you get paid depends largely on whether there is liability insurance coverage available to pay the judgment or whether the defendant has the assets available to pay the judgment. As you will find, the lack of insurance will also typically indicate a lack of assets.

A monetary judgment is simply an award ordered by a court that officially states the amount of money owed to you by a specified person or entity (the judgment debtor). This final judgment does not actually provide for the collection of the money owed to you. Instead it authorizes you to use the legal means necessary to enforce the judgment so that you may be able to collect the money owed to you. In fact, the judgment may simply be the start of a long and difficult (sometimes impossible) process.

In the ideal situation, the defendant in your lawsuit is covered by insurance for the specific conduct that caused you harm. In case of coverage, your damages will be recoverable against the insurer up to the policy limits of the available insurance coverage. In some cases, there may be recovery for more than the policy limits but that is a topic unto itself.

But what happens when there is no insurance coverage to pay the judgment?
When there is no insurance coverage the law allows you to attempt to enforce the judgment. Unfortunately, as suggested above, this is often not an easy or inexpensive process. If the debtor is located and it is determined that he or she has assets with which to pay the judgment, the law provides a number of remedies for collection.

New Mexico law allows for wage garnishments. It also allows for the filing of liens against the property of the debtor in order to collect the money owed under the judgment. It is also possible to obtain what is called a writ of execution that will allow you to have the assets of the debtor seized to pay the judgment. Assets of the debtor include such things as income, bank accounts, automobiles other personal property and real estate of the debtor. However, it should be kept in mind that there is a homestead exemption that may place the asset of greatest value out of reach of collection.

Frequently, as suggested above, when there is no insurance coverage, it is generally the case that the judgment debtor simply does not have the assets to pay the judgment. Such a debtor is referred to as a judgment proof debtor. When the debtor is judgment proof, you may never collect the money owed to you by the judgment. And this begs the question of why go through the exercise to begin with.

Lack of insurance coverage often means a judgment proof debtor.
Most experienced lawyers have come to learn that when a defendant/debtor has no insurance coverage, the defendant is also likely to have no assets making the defendant judgment proof. This should be logically intuitive since people that have money and other assets will generally seek to protect those assets through insurance coverage.

When there are no assets to protect, there are often no assets to protect. Likewise, there may simply be no money or desire to pay insurance premiums. There are exceptions of course. Though these will merit investigation, they are fairly rare.

In the case of a lack of insurance, most law firms will be reluctant to take on a case even though there are substantial injuries and clear liability. A lawsuit can be a time consuming, costly and therefore risky venture for the attorneys . As such, careful consideration must be given to the likelihood of ultimately being able to collect on a judgment. This may seem harsh and insensitive but it is dictated by economic reality.

It is important to determine early whether or not insurance coverage is available. If there is not, chances are that except in fairly rare circumstances a lawsuit cannot be justified. These are questions that you should expect at the first contact with an experienced personal injury attorney.

Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
New Mexico Leads the Nation in Uninsured Motorist
Fair Settlement of Personal Injury Claims is More Math than Wrath!

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Related Reading:

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


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

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Collins & Collins, P.C.
Albuquerque Attorneys

Actos bladder cancer lawsuits are beginning to mount. Many of the cases were consolidated to Federal District Court in the Western District of Louisiana at the end of December by the United States Judicial Panel on Multidistrict Litigation. On January 4, 2012, a number of California Actos bladder cancer lawsuits were consolidated by the Los Angeles Superior Court.

Due to the significant risks of bladder cancer associated with Actos use, the lawsuits will continue to mount and probably at an escalating pace. The FDA has found that approximately 2.3 million prescriptions were filled just during the period of January 2010 to October 2010. Actos was first approved by the FDA for use in the treatment of type 2 diabetes in 1999. This means that millions of upon millions of patients have been prescribed this potentially dangerous drug and many of these will have been on the drug for prolonged periods of time.

The lawsuits allege that Takeda Pharmaceutical and Eli Lilly, the manufacturers of Actos, failed to provide appropriate warnings of the dangers of Actos despite knowledge of those dangers. It has been determined that Actos can increase the risk of bladder cancer by up to 40%. Those taking Actos for more than one year are at the greatest risk. The risks increase with longer usage and greater dosages.

Those injured by Actos may be able to recover a wide range of damages depending upon the circumstances, their injuries, and the duration and dosages that they took Actos. The recoverable damages would include medical expenses (past and future) associated with Actos related injuries. Injured plaintiffs might also depending on the circumstances recover for lost wages (past and future), pain and suffering, permanent disfigurement, and wrongful death.

Though rare, punitive damages might also be a possibility. An argument for punitive damages might have particular weight here where the manufacturers have known for quite some time of the danger. In addition, both France and Germany have either banned or placed significant restrictions on the prescription of Actos. Despite the clear findings of risks, Actos continues to be prescribed in the United States.

If you have taken Actos for more than one year and you have any signs of bladder cancer, you should first contact your doctor. Once this is done, you should then contact an experienced personal injury attorney right away. These cases are complex and require significant analysis and preparation, particularly in light of the multidistrict litigation consolidation. Finally, as with all personal injury claims in New Mexico, there are strict deadlines associated with these claims so that undue delay could have bar your recovery completely.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many myths surrounding personal injury claims. One persistent myth is the frivolous lawsuit. Related to the frivolous lawsuit myth is a basic misunderstanding of many concerning the ease of obtaining money from insurance companies. In fact, insurance companies are pretty protective of their funds and do not readily part with them.

There are many including a few inexperienced lawyers that believe that insurance companies will cower at the threat of a lawsuit. Based upon this mistaken belief, they believe that throwing out a high dollar demand under the threat of suit on a trivial or even non-existent claim will intimidate the insurance adjuster into settling for more than the case is worth. In fact, nothing could be further from the truth.

Insurance companies get hundreds or thousands of cases every day. Each and every case will go through a standardized valuation process. These processes may differ in varying degrees between different insurance companies but each insurer will have its own valuation process.

The adjuster will first look at liability to determine if its insured is responsible for the accident. In New Mexico it may have to factor in comparative negligence. If the insurer finds that there is no liability or fault on the part of its insured, it is highly unlikely that it will pay out on a claim. Of course, there are those cases with disputed liability and in New Mexico comparative fault where the valuation process becomes more complex. However, in cases where there was clearly no liability, the insurance company is not going to pay. After all, it seems that insurance companies have a knack for making money unnecessarily paying claims is not in line with their business model.

Once past the liability calculation, the insurer will then attempt to evaluate damages. The valuation will factor in medical costs and treatment both past and future. It will factor in lost income, permanent disability, disfigurement, pain and suffering and other elements of compensatory damages. Then it will determine its exposure for punitive damages, which contrary to common belief are very rare.

Once these potential damages are totaled up, the insurance company will set a range of settlement values within which it will settle. The insurance company will not deviate from those ranges unless there is additional evidence provided to support a higher settlement value. In other words, the plaintiff usually through an attorney will have to provide documentation, medical records, expert reports, economic analysis and so on to support a higher settlement value.

No amount of yelling or threats at the adjusters will move them off their settlement range. The common, "I will see you in court" will be met with a yawn if it warrants even that. One thing that many do not appreciate is that insurance companies have a herd of eager defense lawyers standing by who would like nothing more than to see you in court. In fact, the more they see you in court, the more money they make. So the threats and yelling will do you no good, and are much more likely to make your case more difficult.

Anyone contemplating a personal injury claim should understand that the value of their claim for the insurance company is a relatively straightforward mathematical calculation of liability and damages. There is no room for intimidation in math. It is far more effective to come to the table armed with proof of liability and damages. This proof alone is what will influence an adjuster into a fair settlement. Without it, there simply is no pot of gold waiting at the end of the mythical frivolous lawsuit.

Collins & Collins, P.C.
Albuquerque Attorneys

The holiday season provides ample opportunity for social gatherings that often include pets amid the mix of visitors, food and celebration. A dog may find itself confronting rough handling or even getting tripped over in the midst of the holiday festivities. Regrettably, a dog may bite in reaction to situations that create stress, such as over-excitement or pain.

According to the Centers for Disease Control and Prevention, approximately 2% of the U.S. population, or more than 4.7 million individuals suffers from a dog bite each year. A large majority of the victims are children bitten on the dog owner's property. The Insurance Information Institute estimates that dog bites amount to roughly 1/3 of all insurance liability claims made through homeowners policies.

A basic homeowners policy typically includes liability coverage that provides some protection against injuries to others caused by pets. Additionally, a homeowners policy may provide guest medical coverage which would pay for medical expenses due to dog bites without having to first determine liability. However, both liability and guest medical coverage may fall short if the injury is substantial. As an added layer of protection, extra liability coverage can be purchased for those who have significant assets to protect from legal judgments involving dog bite injuries.

Yet, paying for medical expenses may not end the consequences of owning a dog that bites. Once a biting tendency is known, the insurer of the home may view the dog as an increased risk. This could lead to higher premiums or an exclusion of coverage for damages or injuries caused by pets. State laws may also require the animal be humanely destroyed.

Dog bite prevention is ultimately the best protection for both homeowners and their guests. Proper training and socialization beforehand can help a dog better anticipate the behavior of others. Of course, spaying or neutering has been also shown to reduce aggression. But even these measures may not be enough.

Once a party has commenced, proper supervision of the dog would be best but may not be possible; consequently, keeping the animal separated in another room or outdoors may be the only option.

Knowing how a dog responds to different stimulation can also be a key in anticipating problems. If rough play brings on aggression, guests can be warned to avoid this type of interaction. If kids are present, they cannot realistically be expected not to play with the dog. Small children often play the roughest are most at risk. If the dog has any history or predisposition to aggression in stressful settings, then the dog should be kept away from the guests.

Celebrations often bring many types of personalities together. Pets are no exception. A little planning and awareness will help insure that everyone enjoys their time spent together.

Collins & Collins, P.C.
Albuquerque Attorneys

The ideal situation when making a claim for injuries and damages arising from a personal injury accident is settlement with the insurance company without extensive time and expense. Unfortunately, obtaining a settlement that both the injured party and the insurance adjuster feel is reasonable is often not possible prior to litigation. Typically the adjuster believes the claim worth far less than the injured party and if the claimant/injured party is unwilling to lower his or her settlement demand, a lawsuit is necessary.

With a lawsuit, many issues arise related to litigation. One issue that arises immediately that is time-consuming, expensive and often frustrating is discovery. Discovery is the process in litigation that allows each party to obtain information from the other party related claims and defenses. The insurance company will hire an attorney to represent its insured, the defendant, and that attorney will seek information from the plaintiff.

During discovery, the plaintiff and the defendant gather evidence and information about the facts of the case and the other party. Discovery helps both parties to build their case and determine what evidence to present at trial. Depending upon the circumstances surrounding the accident and the claim for damages made by the plaintiff, the defendant may want to gather information about the plaintiff's physical condition prior to the accident or interview any witnesses to the accident. The plaintiff may want to learn information about the defendant's criminal or driving record and obtain a copy of the accident report. Discovery may also lead to resolution of the case after the attorneys have fully evaluated the claim, its value and the risks involved with proceeding to trial.

There are several methods of conducting discovery in a personal injury case. Your personal injury lawyer will explain to you the best methods for your particular case. Generally both parties submit to the other side a set of written questions, called interrogatories, that they must answer, called interrogatories, within the statutory period. Parties will also issue requests for production of documents. Depending upon the type of claims, these requests can be very extensive. Parties will typically at some point issue requests for admissions. These will be questions aimed at narrowly the scope of contested facts. The timing will depend upon the lawyer's approach and the circumstances of the case. For each type of discovery, the attorney will help to prepare the final responses to provide to the other party but the answers must come from the party since it is the party who will have the knowledge to answer the questions.

In addition, either party may ask the plaintiff, the defendant, or any potential witness to appear at a deposition. A deposition is an out of court proceeding but deposition testimony is admissible at trial. In a deposition, the party or witness will be asked question which must be answered under oath. The questions should be relevant to the issues in the case. However, this construed very broadly allowing the attorney great latitude to ask questions that "may lead to the discovery of admissible evidence."

Testimony given at a deposition is under oath and transcribed by a court reporter who by the way are very expensive. Either party can issue a subpoena requesting a witness to appear for a deposition. A deposition is a helpful way to determine what a potential witness's testimony will include at trial. However, the party requesting the deposition must pay for all expenses including a witness fee for appearing at the deposition, mileage reimbursement to the witness and the court reporter's costs.

This all sounds pretty straightforward but it can growing very contentious and very expensive in a hurry. Discovery is typically the most contested, burdensome and expensive portion of any litigation. Many times much of the expense and burden can be avoided or at least minimize. Other times, it cannot which can lead to extraordinary levels of costs on both sides.

Collins & Collins, P.C.
Albuquerque Attorneys

Insurance products are intended to help manage risks individuals face from certain unforeseen circumstances. When an insured person is found responsible for damages or injuries caused to another person, a standard homeowners policy or auto liability policy can provide some protection. However, this coverage can be woefully inadequate in case of serious injuries.

For homeowners insurance, there is often only$100,000 worth of liability coverage. For auto liability insurance, the legally required amount is only $25,000. Many will carry coverages well in excess of this coverage but even these larger amounts may be insufficient to cover serious injuries.

When the liability limit is reached, an insured could find themselves personally responsible for the remaining costs. In the face of catastrophic injury, even coverage of $100,000 may not cut it when one considers medical bills, future medical care, rehabilitation and even the loss of a career due to an accident-induced disability.

To help prevent an accident or injury from consuming one's hard-earned financial resources, additional protection can be purchased in the form of a personal liability umbrella policy (PLUP), also known as an excess liability policy. An umbrella policy will take effect once liability coverage has been exhausted. Rates for an umbrella policy can range from $150 to $300 per year for a $1 million policy, which is just a fraction of the premium charged for standard homeowners or auto coverage. Each additional million can range from $50 to $75 per year.

In order to obtain PLUP coverage, an individual must have minimum prior coverage limits. For instance, to qualify for PLUP coverage, a driver must have minimum auto liability coverage limits of $250,000 per person/$500,000 per incident. Assuming one meets these threshold requirements, an umbrella policy should be considered by those who have personal assets higher than their homeowner's liability or auto liability limits. Without this additional coverage, an individual may be forced to liquidate their assets or even have their wages garnished to cover legal judgments.

For those who already have a personal umbrella policy, it might be wise to occasionally reconsider the policy limits to avoid being underinsured. As one's assets grow over time, it is easy to forget that insurance needs grow as well. Personal umbrella coverage can truly live up to its name; providing an extra layer of protection on a day when circumstances not only rain, they pour.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New Mexico Supreme Court case once again addresses loss of consortium claims. Specifically, the Court in Wachocki v. Bernalillo County Sheriff addresses a claim for loss of consortium by a sibling.

The case involved the death of 22 year old Jason Wachocki which was caused by a speeding Metropolitan Detention Center van. A successful wrongful death claim was brought on behalf of Jason's estate. However, the loss of consortium claim brought by Jason's brother, Bill Wachocki, was denied by both the district court and the New Mexico Court of Appeals.

The basis for the loss of consortium claim was the very close relationship shared by the brother. Growing up, they had shared a bedroom and at the time of Jason's death, they had been sharing an apartment for 8 months for which they shared expenses. Bill had a close relationship sharing many activities together. Bill looked up to Jason as a role model confidante.

The Court relied upon the 2003 New Mexico Supreme Court case of Lozoya v. Sanchez.. Lozoya set forth several factors for consideration of a loss of consortium claim:

"the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and . . . whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements."

The Court of Appeals determined that the brothers did not share a sufficiently close relationship as required under Lozoya. Bill's attorneys argued that the Court of Appeals improperly applied the "mutual dependence" factors set forth in Lozoya. He argued that this factor should not be applied to a sibling relationship since it was intended for spousal type relationships.

The Supreme Court disagreed with Bill's position refusing to alter the Lozoya test to fit the sibling relationship. The Court believed altering the factors would result in countless future permutations to fit an indeterminate variety of relationships in the future. The Court suggested that this would cause undue confusion on the lower courts perhaps spawning lawsuits for all manners of relationships.

Instead, the Court determined to simplify the Lozoya factors to accommodate varying relationships. Though Bill's loss of consortium claim was denied, the Court made clear that its decision was not an absolute bar to sibling loss of consortium claims. The Court held, consistent with the Court of Appeals, that the key to the analysis of loss of consortium claims is "mutual dependence" factor set forth in Lozoya.

The Court suggested that the level of mutual dependence might exist between siblings noting that unmarried cohabitants and grandparents had shown the necessary mutual dependence in past cases. Interestingly, the Court noted that most other states do not recognize sibling loss of consortium claims. The Court seemed to suggest that in New Mexico, though it is not entirely clear from the opinion, that not only might siblings meet this standard but other relationships as well.

In any event, the Court determined that though the brothers were very close, they were not mutually dependent as required under Lozoya. Unlike spouses, unmarried cohabitants, grandparents, though they had a close emotional attachment and shared expenses, this did not meet the level of mutual dependence to support a loss of consortium claim

Collins & Collins, P.C.
Albuquerque Attorneys