New Mexico Injury Attorney Blog

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

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

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

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

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

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

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

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

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


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

Collins & Collins, P.C.
Albuquerque Attorneys

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

One headline last week seemed pretty outrageous. The headlines from the New York Daily read, "Admitted Drug Dealer Sues Doctor Who Prescribed Painkillers." However, the article brings up some very interesting issues.

That case involved a convicted drug dealer, Lionel Sease, who was sentenced to 6 to 16 years for possession with intent to distribute. Sease led investigators to his doctor who had over-prescribed various painkillers to Sease which were the drugs for which Mr. Sease was charged and convicted. The doctor was charged and convicted for Medicaid fraud and illegally dispensing drugs. Sease has now filed a personal injury suit against the doctor for $35 million in punitive damages and $8 million in compensatory damages for the over-prescription of Vicodin, Percocet and Oxycontin which led to Sease's addiction.

This at first may seem outrageous and frivolous. On the other hand, abuse of painkillers such as those prescribed to Sease has reached near epidemic levels. The problem is particularly acute among teenagers and young adults. The courts are overrun with these cases. So too are rehab facilities and the morgues.

How much responsibility should be placed on the medical professionals that over-prescribe these drugs? These drugs clearly have therapeutic benefits. They are necessary for pain management in many cases including injuries or other conditions causing chronic pain. When does the responsibility pass from the patient to the doctor? Certainly, the patient must share responsibility for overuse and consequent over-prescription of these powerful painkillers.

On the other hand, isn't this the essence of addiction, an inability to moderate use of these drugs? In the case of Mr. Sease, there may be little sympathy from a jury. But one does not need to look far to see the catastrophic consequences of the over-prescription of painkillers. Where should the line is drawn on causation which is a necessary element to any personal injury lawsuit?

The problem and consequences of pain killer addiction has taken on added interest and urgency across the country, including Albuquerque, with a growing trend of pain killer abuse and addiction among youth and young adults. Often, painkiller abuse begins with legitimate usage even among high school and college aged kids.

Youth and young adults are generally more susceptible to injury from a variety of youthful activities,. High school athletes are particularly prone to injury sometimes very serious requiring painkillers. Who then is responsible for over prescription, unnecessary duration, and unjustified refills? Is it the parents, the doctor, the kid? These are very difficult questions and these questions haunt many parents who have seen their children go down this road.

Perhaps most troubling of all is the rising use of heroin among youth and young adults. The headlines in Albuquerque have tragically reported a number of heroin related deaths of high school kids and recent graduates over the last year. Why is this of interest here? As opioids, the physical effects of oxycodone and oxycontin mimic that of heroin. There appears to be a relationship between addiction to these drugs and later heroin use. The problem is likely to grow worse since heroin is now cheaper, and apparently easier to get for high school and college kids than these painkillers.

There is an indisputable relationship between drug addiction and crime. There is a clear relationship between drug addiction and criminal convictions. The overcrowded prisons are a testament to that relationship. In the case of painkiller addiction that begins with a doctor's negligent, reckless or willful over-prescription, is it so hard to draw the line of causation.

Is Mr. Sease's lawsuit really all that outrageous? And what of the high school athletes or other young people who have seen their futures ruined as a result of painkiller addiction? What should a jury say to a parent who has lost a child to overdose from painkillers (the death rate from opioid use tripled from 1999 to 2007 according to the Center for Disease Control). And what of the parent who has lost a child to heroin, jail or prison arising out of an addiction developed initially through an over-prescription of painkillers?

Responsibility is an elusive question in these cases but it seems there is plenty to go around. Mr. Sease's suit will put a spotlight on how much of the responsibility the doctor should bear.

Collins & Collins, P.C.
Albuquerque Attorneys

The law regarding a failed tubal ligation continues to evolve in New Mexico with the recent case new Mexico Supreme Court case of Provencio v. Wenrich. New Mexico was among the earliest, and remains among the few states, that recognize a claim for wrongful birth of a child following a failed sterilization procedure.

New Mexico first recognized the claim in the 1991 New Mexico Supreme Court Case of Lovelace v. Mendez. In that case, the sterilization procedure failed as a result of medical negligence. The negligence was magnified by the doctor's deliberate failure to notify the patient of the failure. As a result, the patient believed that she was infertile and took no measure to protect against unwanted pregnancy. She became pregnant giving birth to a healthy child.

The plaintiff in Mendez brought a wrongful conception claim against the doctor requesting a number of damages most significant of which was the future costs of raising the child. New Mexico recognized the claim for wrongful conception for the failed sterilization procedure. However, the duties and causal connections were much more straightforward in that case than in Provencio v. Wenrich.

Provencio involved a failed tubal ligation surgery following the birth of the plaintiff's fourth child. However, unlike the Mendez case, the doctor immediately informed the plaintiff at the first follow-up appointment that the procedure had failed. The plaintiff chose not to have a corrective procedure. The plaintiff later became pregnant and gave birth to a healthy child. The plaintiff then sued for wrongful conception and battery. Though other damages such as the costs of the corrective procedure along with pain and suffering were available, the plaintiff chose only to pursue the costs of raising the child along with punitive damages.

Again, it was undisputed at trial or throughout the appellate process that the plaintiff was aware of the failed sterilization and chose not to take corrective action. On the one hand, the Supreme Court found that the New Mexico Court of Appeals properly rejected the defendants argument of independent intervening cause, "Because the independent intervening-cause doctrine does not apply to a plaintiff's own negligence." On the other hand, the Supreme Court disagreed with the New Mexico Court of Appeals finding that the doctor's notice to the plaintiff was merely a factor to be considered by the jury in the apportionment of fault.

The Court of Appeals saw the case as a comparative negligence case while the Supreme Court viewed it strictly in terms of legal duty. The Court in Mendez did not have to address the issue of legal duty since it was undisputed that the doctor failed to notify the patient of the failed procedure. In Provencio, the Court found that the doctor though negligent fully met his duty to inform.

The failure to inform was the basis for holding the doctor in Mendez responsible for the full costs of future care of the child. The Supreme Court in Provencio refused to allow these extraordinary damages on public policy grounds. The Court set forth a hypothetical where a patient knew of the failed procedure yet gave birth to multiple children over time, each time seeking damages for the costs of raising each child as a result based upon the original failed procedure.

The Court refused to there. This was not a comparative negligence case for the Court but more akin to an assumption of the responsibility. Though other damages were available, the plaintiff assumed the responsibility for raising the child when she knowingly failed to correct the failed sterilization.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not uncommon for neighbors, friends, family or others to help each other out in a pinch. Often times, the help comes in the form of work around the house. This may include home improvement, cleaning, and sometimes just helping with some heavy lifting. It is also relatively common that personal injuries are suffered by the well intentioned neighbor, friend or family member. The good news is that there may be insurance coverage that covers the injuries. The bad news is you have to bring a claim and sometimes a suit against the homeowner to gain the benefit of the coverage.

This of course can be a sticky point among neighbors, friends and family. Not everyone takes kindly to being sued. In addition, the injured party may just feel guilty about bringing a claim. However, in cases of serious injury, this may be the only option for the injured person to recover for medical costs and other damages. In many cases, especially in today's healthcare climate, it may be the only way to even get essential medical treatment.

Both the homeowner and the injured person should understand that the claim is against the homeowner's insurance policy, if there is one. Most homeowners will have homeowner's coverage. In the case of homes under a mortgage, they must have homeowner's coverage. In those cases where there is not coverage, then there really are some uncomfortable realities. First, to recover, the injured person must sue the homeowner alone. Second, if the homeowner does not have insurance coverage, then the homeowner probably has significant financial issues that suggest that he or she may be judgment proof (i.e. you can't get blood out of turnip).

When there is homeowner's coverage, the coverage limits are generally at least $100,000. Many homeowner's carry significantly more than this. However, these limits are generally sufficient. There are cases that involved severe, permanent, or catastrophic injuries, and on occasion there will be a wrongful death where these limits would be insufficient. This gets us back to the last paragraph where the homeowner may simply lack the financial resources to cover injuries and damages above and beyond the $100,000 limits.

In those cases where the insurance coverage limits are sufficient to cover all damages, the homeowner will not suffer any personal financial hardship associated with the claim. There may be an increase in premiums in some cases. And in cases where there have been a number of claims on the policy, there is the risk of cancellation of coverage. However, this increase in premiums or possible future cancellation is likely far less harmful or burdensome on the homeowner than uncompensated physical injuries or worse, untreated physical injuries.

This situation can be hard to understand on both sides of the equation. The homeowner may feel financially threatened, which they generally are not. Likewise, the injured person may be afraid that a claim will harm their neighbor, friend or family member. In most cases, a little education can alleviate concerns on both sides.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the Worker's Compensation Act was purportedly enacted to protect workers for on the job injuries. The Act it is said provides certainly to an injured worker who can obtain needed medical care and lost wages for work related injuries. This is partly true.

The Act does provide for medical coverage and a portion of lost wages for injured workers. The lost wages are limited in both time and amount. Typically, the allowable recovery for lost wages leaves the injured worker largely uncompensated. At the rates provided under the Act, lost wages will often leave an injured worker and his or her family in severe financial hardship.

Unfortunately for most injured workers, no matter how serious the injury or how the injury was caused, recovery for personal injuries is limited to medical expense and lost wages as set forth by the Act. This means that workers, except under very rarely circumstances, cannot sue their employer for personal injuries even if the employer caused the injuries.

However, in order to obtain protection under the Workers Compensation Act, the employer must carry workers compensation insurance as mandated under the Act. As a result, those employers who do not comply with the insurance coverage requirements under the Act are fully exposed to personal injury lawsuits for injuries to their workers.

In short, if you are injured on the job, and your employer does not have workers compensation insurance, then you may sue to the employer in tort for personal injuries. Because the uninsured employer is not protected under the Act, the employer is fully liable for all damages recoverable in a personal injury lawsuit.

If you or a loved one have been injured on the job, you should immediately make a worker's compensation claim. We do not handle worker's compensation claims at Collins & Collins, P.C. There are very short and critical deadlines for worker's compensation claims. Therefore you should contact a worker's compensation attorney immediately if you have any questions. There a number of very good worker's compensation attorneys Albuquerque and elsewhere throughout New Mexico.

If your employer does not have worker's compensation insurance and the accident was caused by unsafe working conditions or other negligent actions of your employer, then you should contact an experienced personal injury attorney to evaluate your claims. In the absence of worker's compensation insurance, you may be able to recover through a personal injury lawsuit. In fact, depending on the circumstances, your recovery may be far greater in a personal injury lawsuit than it would have been through worker's compensation.

Collins & Collins, P.C.
Albuquerque Attorneys

Many people that suffer personal injuries in an accident come with some baggage. Among the most common are preexisting medical conditions or injuries. Many injured plaintiffs are reluctant to share the preexisting conditions with their lawyers for fear that they will hurt their case.

There are several problems with the failure to disclose preexisting conditions to your lawyer. The problems associated with disclosure are far easier to deal with than problems caused by a failure to disclose. In fact, the preexisting conditions may not hurt your case at all while a failure to disclose them is often very difficult to overcome.

Typically, preexisting injuries that are similar in nature to the injuries suffered in the accident will be examined with a high level of scrutiny. The insurance company will want to know that the injuries were caused by the accident. However, just because they were similar in nature does not mean that they will not be compensated. Likewise, preexisting conditions that make you susceptible to injuries of the kind suffered in the accident, even if completely unexpected, should not be used to devalue your claim.

The age old rule that addresses these situations is the "egg-shell plaintiff" rule. The rule basically states that you take the plaintiff as you find him, no matter how frail or susceptible to injury, even when as delicate as an eggshell. In other words, the defendant and his or her insurance company cannot argue that an average person would not have been hurt or injured in the accident. Neither can they argue that the injuries were too unpredictable due to the plaintiff's susceptibility to injury to merit recovery.

New Mexico, and most states, actually has a jury instruction addressing the "egg-shell" plaintiff. New Mexico Uniform Jury Instruction 13-802 addresses the tension between non-compensable preexisting conditions and those conditions that are worsened or aggravated by the plaintiff's susceptibility to injury as a result of preexisting conditions. UJI 13-1802 states in part:

"...If you find that, before any injury in this case, plaintiff was already impaired by a physical or emotional condition, plaintiff is entitled to compensation for the aggravation or worsening of the condition, but not for elements of damages to the extent they were already being suffered.] [However, damages are to be measured without regard to the fact plaintiff may have been unusually susceptible to injury or likely to be harmed. The defendant is said to "take the plaintiff as he finds [him] [her]," meaning that the defendant, if liable, is responsible for all elements of damages caused by the defendant's conduct even if some of the plaintiff's injury arose because the plaintiff was unusually susceptible to being injured.]"

The cases in New Mexico have consistently found and it is well settled principle of tort law that a defendant is fully liable for all damages caused by his or her conduct even where the injuries are far more severe for the plaintiff than they would have been for an average person.

If you have suffered injuries in an accident and you do have preexisting medical conditions, it is important to address these head-on with an experienced personal injury attorney.
A plaintiff's apprehension about preexisting conditions is understandable. However, failure to disclose these conditions will put your attorney and your case at a severe disadvantage.

Collins & Collins, P.C.
Albuquerque Attorneys

In most cases, when a person suffers personal injuries in an accident, his insurance, either health or automobile, will pay for his medical bills. Although another party is likely responsible for the bills, it is simplest for the injured person to obtain the care needed and have it paid for by his or her own insurer. Then, if and when the injured party recovers money damages from the party who is at fault for causing the injury, the injured party is responsible for reimbursing his insurer for medical benefits paid on his behalf. This payment, or reimbursement, is known as "subrogation." The question many injured parties have is why they must reimburse their insurance company, when they purchased either health insurance or med pay under their auto insurance policy and paid insurance premiums for that coverage month after month?

Usually, the reason is that you agreed to do so when you purchased your insurance. That very long contract of insurance stated what the insurer would do for you, what it wouldn't do, and what you would do for the insurer as part of the deal. The contract you signed most likely included a "subrogation" clause that states that your insurer is subrogated to all rights of recovery that you, the injured party, has against the at fault party for the injuries caused for which bills were paid. By signing the insurance contract and accepting benefits of coverage, you agree that if you were injured due to the fault of another, and obtained money to compensate you for your damages, you will reimburse your health insurer for medical bills paid on your behalf.

Both auto policies and health insurance policies often state that the insured has "assigned" his right to recover against the negligent party to the insurer and that the insured will do whatever is needed to assist the insurer recover. Basically, the insurer can pursue a legal action against the negligent party. In practice, the insurance company usually lets the insured do the work and pursue the claim and waits for reimbursement. If you refuse to pay your insurer and breach the contract, the insurer may sue you for the amount that should have been reimbursed plus, in most cases, attorneys fees and costs incurred in obtaining their rightful payment. Your insurer may also cancel your insurance because you did not abide by your contractual obligations.

If you have an attorney, your attorney has likely been notified of the insurer's payments and is well aware that the insurer is due payment. Generally a health insurer will send a letter to its insured, his attorney and the insurance company of the at-fault party so that all are aware of its subrogation interest. In that situation, the notice basically acts as a lien against the settlement proceeds or trial recovery and your attorney is obligated to pay the lien or he himself may be liable. Even if your attorney has not received a formal letter of subrogation from your insurer, he is aware of your medical care and knows who has paid your bills.

It is very important to notify your attorney of any known liens or subrogation rights. An experienced personal injury attorney will investigate the payments, determine if subrogation is appropriate and then negotiate reimbursement. These liens can typically be negotiated down and often require a statutory reduction in the lien. Perhaps just as importantly, ty taking care of the subrogation, your attorney actually protects you from future problems with your insurer.

Collins & Collins, P.C.
Albuquerque Attorneys

If you have been in an automobile accident and the other party involved is at fault, the first question you probably have is how to get the other party's or your own insurance company to pay your damages.

Once a report is made and the accident is turned over to the adjuster, adjuster may request a statement from you. A couple of things will happen whether or not you give a statement, which in cases involving significant injuries and damages may not be advisable without the guidance of an experienced personal injury attorney.

First, with regard to your property damages, the insurance company will send an adjuster to look at your vehicle to determine the amount of damage due to the accident. Sometimes the adjuster will provide you with a check at the time of the vehicle inspection. Other times a check will be sent to you. Upon receipt of the check, you can take your car to the repair shop of your choice. If the repair shop determines that additional repairs are needed, a representative of the shop will contact the adjuster directly to provide an explanation and hopefully, obtain additional funds for the necessary repairs. If the repairs needed are clearly related to the accident, there usually is no problem obtaining supplemental repair damages.

The second item concerns your damages for personal injuries. The adjuster will want to know if you were injured in the accident and if so, what sort of medical treatment was obtained. The adjuster will want copies of medical records and medical bills. If you have minimal treatment and are able to provide documentation quickly to the insurance adjuster, you may be able to obtain a settlement and resolve your personal injury claim within a reasonably short amount of time.

However, if you have a more extensive injury that requires months of medical treatment, the process may take some time. In cases involving serious injuries and significant medical treatment, there are numerous complexities that may necessitate the assistance of an attorney. In any event, at this point most claimants obtain an attorney because the process is too aggravating to a person not familiar with the insurance or legal system.

With or without a lawyer, certain tasks must be accomplished to obtain a satisfactory personal injury settlement. The most important task is to obtain objective evidence of your damages and to provide that information to the adjuster. This evidence includes medical records, medical bills, proof of lost income and proof of other expenses that were incurred because of the accident and your injury. Medical records and bills are easily obtained and are easily understood by the adjuster.

Proof of lost wages can be shown by providing copies of pay stubs and time cards to prove your hourly wage and days missed. A letter from your supervisor stating that you missed a particular number of days following the accident can also be helpful. And, if you incurred other damages that are related, such as medications or medical items, provide a receipts that clearly shows the item and cost.

You may wonder, what about pain and suffering? To you, the back or neck pain that prevented you from playing your usual golf game or sleeping soundly through the night is worth a great deal. The worry you faced about your job security when you had to take off time from work over and over for doctor's appointments or simply because you didn't feel well enough to work, is significant and worth money to you.

As important and valuable as these damages are to you, they unfortunately are viewed with skepticism by adjusters. Simply put, to an adjuster, your pain and suffering along with the inconvenience you endured and the mental anguish you faced means little. Certainly there is some consideration of these elements of your damages, but these elements are not nearly as important to the adjuster as the objective documentation of your injury and damages.

The moral of the story is to be prepared to back up your demand for money damages with proof to give to the adjuster or your attorney. Keep every receipt, every pay stub and every bill you receive from the beginning and be prepared to provide it to back up your claim for damages. And keep in mind any claims whose pain and suffering value is out of proportionate to objectively measured damages will be met with significant resistance from the adjuster.

Collins & Collins, P.C.
Albuquerque Attorneys