New Mexico Injury Attorney Blog

As another oil rig burns in the Gulf of Mexico, BP is attempting to extort new Gulf leases with suggestions or perhaps threats that without these new leases it cannot or will not pay the damages for the disaster it has caused in the Gulf.

A new bill working its way through Congress would bar any company from receiving deep water drilling permits if it has had more than 10 fatalities on its rigs or has been penalized with fines of more than $10 million under the Clean Air or Clean Water Act. The bill does not mention BP by name but oddly BP is the only company with this track record.

Of course the bill will likely never pass anyway. Remember "drill baby drill." It's still the mantra of the Republican party. It is just whispered now rather than being plastered on t-shirts and posters at campaign rallies. The Right is not concerned with the disaster(s) in the Gulf. It is easier to blame the Democrats and Obama. Instead, in the midst of the crisis they attack Obama for not stopping the horrible and uncontrollable spill that 30 years of oil deregulation has caused. They publicly criticize Obama for not doing more to stop the spill while they continued to fight any meaningful regulation of the oil industry that would stop future spills, and perhaps a few regulations that might help to prevent rigs from exploding, like the one that blew up yesterday.

Oddly, the Right goes the other direction than common sense might dictate. Rather than legislation and regulation to increase the safety of rigs to protect the Gulf and the workers on those rigs (do not forget 11 men died in the BP disaster), the Right will continue to fight for deregulation. It's just what they do and who they are. They can't help it.

But there is more to it than safety of offshore rigs. The deregulation craze has spilled into all other areas of energy production. There are hundreds of contaminated water suits that have been filed against Massey Energy for vast contamination of drinking water in the areas in which they operate. The natural gas industry, the purportedly clean energy alternative, is following suit. Natural gas does indeed burn clean, however, the extraction process has devastating impacts on water supplies around the wells. Like the coal slurry contamination, the chemicals used to extract the gas from the ground seep into the drinking water of nearby residents rendering the water toxic. Yet, there is little regulation over the extraction process or the chemicals that are pumped into the ground.

In the end, thousands upon thousands more will be injured as a result of deregulation of the oil and energy sectors. There will be promises of clean methods. And when mistakes or disasters occur, there will be promises of absolute responsibility. Then there will be back pedaling as with the extortionate threats of BP over regulation of deepwater drilling permits. It will be quite dramatic as legislation quietly dies in Congress and business continues as usual. The only thing left will be the lawsuits to compensate the victims for their damages. Naturally, the Right will then chime in attacking the lawyers that attempt to help those victims and the victims themselves for their opportunistic greed. And BP and friends will skip along their merry way as taxpayers pay for their mistakes.

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

Immediately following any personal injury accident, it is important to document all of the particulars surrounding the event, as well as preserve any evidence that can support your claim. Time has a way of eroding these details if left to memory several weeks later, so write down the details at your first opportunity. If you are unable to preserve this evidence due to the extent of your injuries, obtain the help of a family member or friend.

Transport by ambulance or other emergency medical personal will create a good record of medical treatment related to the accident. However, if you were not taken by ambulance, be sure to follow up with your health care provider as soon as possible. This will insure formal documentation of your injuries by a third party. Be sure to photograph any visible injuries without delay, as they can change quickly over time.

Revisit the scene of the accident as soon as practical. In the case of an automobile accident, it would be helpful to visit the scene at the same time of day on the same day of the week as when the accident occurred. Make note of the traffic conditions, traffic controls and road conditions. Take photographs of the area for those who may not visit the scene in person.

In the case of a slip and fall or other liability type claim, return to the scene as soon as you are able. Repairs or improvements are typically made quickly to prevent further liability. In addition, other conditions can change rapidly such as icy or slippery walkways. If possible, photograph the areas, dangerous conditions or obstacles that caused the accident.

Identify any witnesses to the accident at the time of the accident particulaly those that were not included in a police report or when a police report was not prepared. They may have seen or heard things that escaped your attention. In addition, their testimony carries far more weight than yours in case there are disputed facts. You will want to contact witnesses promptly, as memories have a tendency to fade and people frequently move.

Continue to take notes as you recover. These notes can include the effects the accident has had on your daily life, as well as the pain and limitations you have had to face. You may also want to document your mood, including any anxiety or depression issues, and sleep disturbances.

Good record keeping will ease some of the stress you feel when working through a personal injury claim to its resolution. Taking the steps necessary to preserve evidence and document your injuries and damages is key to a successful outcome in your personal injury claim.

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

The Institute for Legal Reform, an admitted national campaign from the U.S. Chamber of Commerce, is circulating emails to gain support from the public for tort reform. The email captioned "Does America Need More Jobs -- Or More Lawsuits?" calls for an end to "lawsuit abuse." What it really calls for is corporate immunity for reckless and dangerous corporate behavior that harms consumers, workers, the environment and every other corner of our society.

It is odd timing that the email comes out in the midst of the worst corporate disaster in our nation's history. It is the predictable opening salvo in the inevitable U.S. Chamber and right wing efforts to shield BP, its partners, and other like-minded corporations, from responsibility for the harm their negligence and recklessness cause society.

The email suggests a fictional $1.6 billion tax break for trial lawyers. Of course, the email does not mention the subsidy that taxpayers will provide to BP, Halliburton, Transocean and Cameron for the massive damages caused by the BP spill. Nor does it mention the billions in tax credits awarded to the oil industry each year or the billions more in environmental damage that the oil and gas industry cause each year. It fails to mention that it is the taxpayers that pick up these costs. Most of all, the Chamber fails to mention the thousands of businesses and hundreds of thousands of residents along the Gulf Coast who have suffered permanent and devastating financial and emotional harm from the BP disaster.

Make no mistake, the Chamber will speak up once those harmed by the spill take legal action beyond the wholly inadequate $20 billion that BP has dedicated to cover the harm it has caused. There will be thousands that accept very small settlements out of economic desperation. Others are completely barred from the funds because they are not close enough to the coast to qualify for compensation. Instead, very strict rules on compensation along caps on damages have been set up to protect BP, not those that were harmed.

Those that refuse to accept less than they are owed and take up legal action will face years of expensive and stressful litigation. In the meantime, many have lost their financial livelihood and way of life. If they are compensated at all for their losses, it will be years as with the 20+ year litigation of the Exxon Valdez.

Yet it is not BP that the Chamber points out as a drain on society, it is trial lawyers. These are the very same trial lawyers that worked for over 20 years to compensate the victims of the Exxon Valdez. And it is same lawyers that will be seeking compensation from BP. It is the same lawyers that will greatly reduce the costs to taxpayers by avoiding what would otherwise be public assistance to pick up the uncompensated losses to those harmed by the BP spill.

It is these same lawyers that finance this litigation at their own costs and do not get paid a dime unless their clients recover that the Chamber fears will bring down our economy. The Chamber calls these lawyers opportunistic. I am not sure what to call the Chamber's behavior. Maybe, we can ask the thousands upon thousands of workers who have lost their jobs as a result of BP what they need most, jobs or lawsuits. Unfortunately, due to the negligence of BP, the answer is they need both.

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

When President Obama first called for $20 billion to be set aside by BP for the Deepwater Horizon disaster, some on the right called it a shakedown, extortion, anti-American, socialist and so on. The fact is if BP gets out of its liability for a mere $20 billion, then it is the people and businesses on the Gulf Coast that have been shaken down. And it is the American taxpayer that will eat the difference.

The settlement terms first and foremost protect BP and its partners, Halliburton, Transocean and Cameron International from full exposure for the damage the spill has caused. A settlement from the fund will bar injured individuals and businesses from making any claims against BP's partners despite their clear liability for portions of the damages. In turn, a settlement with Transocean by the employees injured or killed by the explosion will bar additional claims by those workers against BP or the other partners. In short, the $20 billion fund was established to protect BP, Halliburton, Transocean and Cameron International, the oil industry. It was not ever intended nor will it come close to fully compensating the victims of spill.

The limitations on claims are pretty strict with compensability based largely on geographic proximity to the spill. Not surprisingly, despite its constant refrain that it will take full responsibility for the disaster, BP has lobbied and continues to lobby to exclude inland businesses directly affected by the spill. Of course this would exclude much of the tourism industry that supports the Gulf Coast such as gas stations, restaurants, tackle shops, restaurant supplies, seafood distributors, gift shops, beer distributors and on and on. It would almost certainly exclude claims by those outside the region that supply goods and services to the tourism and fishing industry along the Gulf Coast.

The settlement rules will even prohibit claims by property owners for the loss of value of their property. This in fact could be a very large figure that will go uncompensated. After all, beach front property on toxic waters has limited sales appeal. Interestingly, real estate brokers and agents will have $70 million set aside to compensate them for their losses. It is clear the real estate industry has much stronger lobby than simple homeowners again bringing home the political realities of the $20 billion fund. Other industry lobbies will likely come forward in the future to have portions set aside for their own losses. Bank of America, Citibank, Goldman must be hurting terribly from the loss of loan activity in the region so they most certainly should be compensated.

The fund protects BP, Halliburton, Transocean, Cameron and even has a measure of protection for the real estate industry while leaving small business, homeowners, and thousands of workers who have lost their jobs to fend for themselves. After all, this is America where personal responsibility is king. Corporate responsibility is an entirely different matter. Good money is paid to keep it that way.

And wait for it! When those opportunistic individuals, workers, small businesses left out in the cold are forced to seek recovery on their own, the tort reformers and the right will waste no time in attacking the villainous and greedy trial attorneys that would dare take on their cause. The same interests that have worked to minimize the liability of BP and its partners will then try to convince us that it is BP, its partners, the oil industry, capitalism and America itself that is being victimized by the trial lawyers who seek to bring compensation to the true victims of the spill.

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

In case of an uninsured/underinsured motorist claim on an automobile accident in New Mexico, the law requires that an insured party notify their insurance company of the uninsured/underinsured claim "as soon as practicable."

The requirement is a little bit vague but what it means in practice is that you must notify your carrier of an uninsured/underinsured motorist claim as soon as it becomes evident that the insurance coverage of the other driver is inadequate to compensate you for your injuries and damages.

This determination may take some time since insurance companies are not always willing to turn over insurance policy limits information on their drivers. Often times, insurance companies will turn over policy limits information only when a demand in excess of insurance policy limits is made and the insurance company feels that legitimate claims may be made in excess of policy limits.

This information may come well into the personal injury claims process. In fact, it may well be that the policy limits are not known until formal discovery is conducted in the litigation process. As such, "as soon as practicable" could be weeks, months or years after the accident has occurred. Only once an insured driver knows of a possible uninsured/underinsured motorist claim must the driver notify his or her insurance company of the claim.

The statute of limitations, always something to watch closely in every personal injury matter, is less of a concern in uninsured/underinsured motorist claims. Personal injury claims, including auto accidents, have a 3 year statute of limitation. The limitation period is shortened to 2 years in case of governmental defendants. However, the statute of limitations on a uninsured/underinsured motorist claims is 6 years. An uninsured/underinsured motorist claim is contractual in nature and disputes on written contracts have a 6 year statute of limitations.

Keep in mind that the statute of limitations is not the same as the notice requirement. The notice to a driver's insurance company must be made once the uninsured/underinsured claim is known. Of course, if this comes years after the accident, the longer statute of limitations on uninsured/underinsured claims provides the driver with added protection.

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

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

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


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


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


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


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


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


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


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


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


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

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

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

Reports in the press show that BP immediately began preparing for litigation following the spill. The company did this as it touted its intention to take full responsibility for the spill. It seems its partners in the Deepwater Horizon well did the same. Unlike BP who downplayed the disaster in the early weeks in efforts to get waivers and settlements on the cheap, its partners have gone the other direction alleging "gross negligence" on the part of BP in the disaster.

Of course, BP's partners, Anadarko Petroleum Corp. and Mitsui Oil Exploration Company of Japan, share BP's motivations. They are attempting to evade their shared responsibility for the disaster as partners in the well. According to the New York Times, BP has made a demand of $272 million on Anadarko for its 25 percent share, and $111 million form Mitsui for its 10 percent share. These demands will clearly go much higher in the coming months and years as the damages and legal claims continue to mount.

The public position taken by Anadarko in claiming gross negligence in order to escape its contractual responsibility is remarkable for a number of reasons. The same is true of Mitsui who has reserved judgment in assessing its contractual responsibilities. First, in its early preparation for litigation, BP apparently snatched up many industry experts. This effectively conflicted many of the experts out of representing plaintiffs. BP will be unable to take the same tact with its own partners since it will be the partners' experts that assess BP's level of negligence. Second, and related to the first, it may be BP's own experts that provide much of the groundwork for the thousands of civil lawsuits that are already in the works, and the many more that are sure to come against BP.

Predictably, BP will fight any claims of gross negligence by both its partners and the many plaintiffs in the civil lawsuits. It is also predictable that Anadarko will reverse position on the issue of gross negligence to avoid punitive damages in the civil lawsuits. It is equally predictable that the Tort Reformers, the right and the oil industry will continue to push for caps on liability both for this disaster and others to come in the future.

Much like Transocean who has pushed for $25 million caps in liability while recovering hundreds of millions of dollars in insurance for the destruction of its rig, BP, Anadarko and Mitsui will waste no time in making claims against one another for their business losses while one and all will join in the refrain to prevent full and fair recovery by the true victims of the BP disaster, the people and businesses along the Gulf Coast. It really its a race to bottom of business, social and community morality.

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

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

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

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

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

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

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

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

Personal injury cases often involve Medicare provided medical benefits. Medicare will claim liens against any personal injury settlement for both past and future medical expenses. Past medical benefits are hard enough to address due to the difficulty of working with Medicare on the settlement of its liens. Future medical is even more difficult due to the uncertainty of those Medicare benefits.

Prior to the settlement of any personal injury claim, it is critical that all Medicare liens be addressed. This includes liens to cover future benefits. Coverage of future Medicare benefits is addressed through Medicare Set-Asides. A Medicare Set-Aside essentially requires that a portion of the settlement or verdict be set aside to cover future medical benefits related to the injuries suffered in the accident. Medicare cannot claim liens against the settlement for unrelated medical benefits.

Failure to set aside funds for future Medicare benefits can be financially devastating. Medicare will take the position that no future Medicare benefits will be provided until the entire settlement amount has been exhausted. In addition, it becomes more difficult to dispute what is and is not related to the accident. Therefore it is important to address the set aside prior to settlement. Negotiation of the set aside up front can result in substantial reductions in the amount required to be set aside.

Basically, the negotiated set aside will fix an amount that must be expended by the injured person prior to Medicare picking up any additional medical expenses. Once that amount has been expended, then Medicare benefits will resume. Again, in the event that the set aside is not negotiated in advance of settlement, Medicare may take the position that the entire settlement amount must be expended prior to the resumption of Medicare benefits.

Due to the extreme position that Medicare may take in the event of failure to negotiate the set aside in advance of settlement, it is important to begin this process well before an anticipated settlement or trial. Unfortunately, this is easier said than done due to the difficulty of working with Medicare. It is a slow and tedious process but essential to protect the funds of a personal injury settlement or judgment.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Medicare/Medicaid will have a lien on all funds from a personal injury settlement or judgment in cases where Medicare/Medicaid benefits were received. Medicare/Medicaid is very aggressive in pursuing these liens. Failure to properly account for and reimburse Medicare/Medicaid for its liens can result in serious penalties for both the personal injury plaintiff and his or her attorney.

Medicare/Medicaid often claims liens on all medical expenses, both past and future. These claims can significantly erode the funds received by the injured plaintiff. This is particularly so in cases where the personal injury plaintiff is seriously injured and there is little or no liability insurance and the defendant has no assets to cover a judgment. This is frequently the case in auto accidents where the at-fault driver is uninsured or underinsured.

Because Medicare/Medicaid typically claims a lien on all medical benefits provided by Medicare/Medicaid, the lien is often overstated, often times greatly overstated. Medicare/Medicaid is not entitled to recover on medical benefits that are not related to the incident that is the subject of the personal injury claims. This is frequently an issue since many of those injured in accidents had previous medical issues for which they were receiving and continue to receive Medicare/Medicaid benefits.

Medicare/Medicaid will often issue a lien that covers all medical benefits received by the plaintiff following the accident. Though the plaintiff may be receiving treatment for the accident related injuries, he or she will still be receiving benefits for other medical conditions during this time period. It is therefore important to go through the lien item by item to insure that Medicare/Medicaid is not claiming a lien on unrelated medical benefits.

Once these unrelated benefits are identified, Medicare/Medicaid will reduce the lien accordingly. In some cases, these unrelated medical expenses may form the bulk of the lien. A careful review of the Medicare/Medicaid lien can result in substantial savings to the plaintiff. In short, a reduction of the Medicare/Medicaid lien results in a dollar for dollar increase in the funds received by the plaintiff from the settlement or verdict. Likewise, each dollar paid to Medicare/Medicaid reduces the amount received by the plaintiff making it very important to carefully review and evaluate every item claimed on the Medicare/Medicaid lien.

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

Many drivers that are involved in auto accidents have no medical insurance. As a result, they are often unable to get necessary medical treatment for their injuries. This is especially frustrating when the accident was caused by the negligence of the other driver. As with many insurance issues, the injured driver's rights can be somewhat confusing.

The issue comes up in frequently in auto accidents in New Mexico. Many times, the other party has no insurance or has very little insurance. However, the issue comes up just as often when the other driver does have auto insurance. In fact, this situation is even more frustrating when the other driver has insurance but the insurance company refuses to advance medical expenses despite their insured driver's clear liability for all injuries and recoverable damages including medical expenses suffered as a result of the accident.

Unfortunately, this is the case more often than not. The insurance company for the negligent driver has no duty to advance medical expenses for the innocent driver's injuries. The insurance company has a duty only to its own insured. As a result of the absence of any duty to the injured driver, insurance companies routinely refuse to advance medical expenses. In fact, it is rare that an insurance company would advance medical expenses to an injured driver other than its own policy holder.

New Mexico has the highest rate of uninsured drivers in the nation. Uninsured/Underinsured Motorist (UM/UIM) coverage is critical since the only coverage an innocent driver is likely to have in an auto accident is his or her own insurance. In addition to UM/UIM coverage, all drivers should carry their own MedPay coverage. MedPay (Medical Payments Coverage) provides coverage for just the situations discussed here.

MedPay provides for the advancement of medical expenses for its insured in case of an accident. MedPay is no-fault insurance so it is immaterial whose fault it is. MedPay allows an insured driver to seek immediate medical attention with the insurance company billed directly by the medical provider. An insured can choose the level of MedPay coverage which typically begins at $5000 limits. This means that $5000 in medical expenses will except in rare circumstances be automatically covered for injuries suffered in an auto accident.

Unfortunately, many New Mexicans have no auto insurance. They are equally likely to have no medical insurance. As a result, MedPay may provide the only possible source of funds for medical treatment following an auto accident. As with UM/UIM coverage, drivers are wise to carry as much MedPay as possible. This is particularly true for those without medical insurance since even minor auto accidents can result in medical expenses that far exceed $5000.

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

In many personal injury cases, the issue of preexisting injuries will be front and center in the calculation of damages. Many times, the defendant who is often represented by an insurance company will argue that plaintiff's injuries preexisted the accident and therefore is no the responsibility on the defendant. Liability and damages often turn on the findings surrounding preexisting conditions.

Defendants are not responsible for preexisting conditions. After all, there must be causation of harm to establish liability and causation cannot be shown for preexisting harms. However, defendants are responsible for incremental harm. The law in New Mexico has been long established that a defendant is liable for any harm done even if the injured person was more susceptible to that harm as a result of a preexisting condition.

This rule is often called the eggshell plaintiff rule meaning that if you negligently hit a person in the head that happens to have a exceptionally fragile skull, you are fully responsible for all harm caused by your negligence. This is the case even though you could not possibly have foreseen such a fragile skull or the terrible damages that might result from your negligence. It is often said that the defendant takes the plaintiff as he finds him.

The rule is reflected in New Mexico Uniform Jury Instruction 13-1802 where it 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 possible tension between the parties becomes clear when reading the UJI 13-1802. On the one hand, the defendant will try to show that the injuries were entirely preexisting, and there was no worsening of those injuries by the negligent conduct of the defendant. The plaintiff is generally forced to acknowledge the prior injuries since there is generally no shortage of medical records on point. However, the plaintiff will argue that the injuries were made worse by the accident. Assuming liability has been established, the outcome of these cases depends on how this issue is resolved.

The parties will often find some middle ground through settlement. However, there are cases where there simply is no middle ground due to honest differences of opinion. There are also many cases where one or the other parties simply has taken an unreasonable and unrealistic position. These are the cases that move forward to trial. The risks of a jury trial are great to both sides making careful and intelligent case evaluation extremely important. This means trying to figure out how a jury will see the case which is easier said than done. Miscalculations will and often do result in tremendous costs to one or the other parties.

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

The seminal New Mexico case addressing worker's compensation exclusivity is the 2001 New Mexico Supreme Court case of Delgado v. Phelps Dodge. The case, despite the leap in the protection of workers over prior law, clearly illustrates the marginal protection employees are afforded from the negligent acts of their employers.

The Delgado case involved a fatal incident at a smelting plant where a worker suffering a horrifying death. The term incident is used because it was no accident that Delgado was burned to death. Instead, the facts showed that the employer clearly expected that Delgado would be killed while performing a task that he was grossly unqualified to perform.

The Delgado case illustrates the disdain with which workers are treated under the Worker's Compensation Act. The good and the bad news is that as a result of Delgado, workers enjoy slightly greater protection than in the past. In the past, New Mexico followed the "actual intent test." Delgado set forth the purportedly higher standard of willful and intentional.

The "actual intent test" is most clearly illustrated by the district court's granting of the defendant's motion to dismiss for failure to state a claim. The complaint alleged that the defendants "acted intentionally, with the knowledge that Delgado would be seriously injured and killed as a result of their actions." The district court, following the actual intent requirement, ruled that even if it was true that defendants "did engage in a series of deliberate or intentional acts which they knew or should have known would almost certainly result in serious injury or death to Reynaldo Delgado...the complaint falls short of alleging that [they] actually intended to harm Reynaldo Delgado." In short, the only way an employer could be sued beyond the Worker's Compensation Act was basically if they murdered the worker. How else may this language be read?

The Court in Delgado took the enlightened view that this standard was unacceptable. However, the Court went only slightly further in protecting workers injured as a result of the acts of employers. The Court held instead employers would lose the protection of the Workers Compensation Act only where the "employer willfully or intentionally injures a worker." The Court defined willfulness as follows: "(1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the injury to occur, or has utterly disregarded the consequences of the intentional act or omission; and (3) the intentional act or omission proximately causes the worker's injury."

The new standard is only slightly better than the old. In fact, employers continue to enjoy protection for gross negligence, and arguably for recklessness. Delgado still requires that the act reasonably be expected to lead to the injury of the worker. It further requires that the employer either totally disregarded the possible consequences or fully expected the injuries to occur. This is little better than the "actual intent test" and arguably mere word play. The result is the same, the employer must send a worker into a situation with a reasonable expectation that the worker will be injured or killed. Anything short of that and the employer is protected by the Worker's Compensation Act and the worker (or his survivors) is left to bear the burden of the employer's negligent behavior.

To be expected, the business community reacted with much the same repulsion to the Delgado ruling as did the defendant who warned the Court "that any deviation from the actual intent test will visit an undo hardship upon employers in this State and wreak havoc with New Mexico's workers' compensation system." It truly is tragic that employers can no longer send their employees to certain death. Honestly, what has New Mexico come to when we visit such injustice on our State's businesses?

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

There were 11,773 DWI deaths nationally in 2008. These numbers are alarming. It is absolutely unacceptable to allow drivers to endanger the safety of others. A drunk driving death has enormous consequences causing severe and irreparable damages for the family, the children, the friends and loved ones that survive. Those that cause these harms, or even threaten these harms, must be stopped at all costs. And when they do cause harm, they must be held fully accountable in every way. Personal responsibility is the foundation of democracy. Agreed?

Contrast these numbers, the outrage associated with these tragedies and the policies to address them with the myth of the medical malpractice crisis. The Hippocratic Oath states, "FIRST, DO NO HARM." It is hard to explain how this Oath justifies the rabid opposition to compensation of victims of medical negligence. The National Academy of Sciences Institute of Medicine estimates that up to 98,000 people die every year as a result of medical negligence. That is almost 9 times the number of DWI related deaths. Where is the outrage?

When viewed against this backdrop, the Hippocratic Oath is rendered meaningless. It is difficult to explain or justify until you realize what is really behind Tort Reform. There is another and overriding oath decreed by the Insurance Industry, the Hypocritic Oath, which states, "FIRST, SEE NO HARM." This explains why Tort Reformers can continue to rant about the mythical medical malpractice lawsuit crisis while denying the true crisis completely. The Hypocritic Oath explains why worker's compensation laws in every state provide pennies on the dollars for damages suffered by injured or killed workers. It explains why worker's compensation laws are drafted and enacted under the pretext of protecting workers when it is really to protect employers against responsibility from their own negligence, and sometimes recklessness, that leads to the injury or death of workers. It explains why these arguments can be made in the face of the reality that there are well over 5000 work related deaths a year according to the Bureau of Labor Statistics, while thousands more suffer permanent and crippling non-fatal injuries, many of which are the result of unsafe working environments or conditions. It explains how Transocean can fight for liability limits of $27 million for its negligence in the BP spill while collecting hundreds of millions of dollars to compensate for its own losses from the very same spill. And on it goes. The Hypocritic Oath is everywhere you find the insurance industry.

The Hypocritic Oath dictates that the insurance industry, purportedly on behalf o their client corporations, doctors and employers should spend millions upon millions every year on Tort Reform to dodge their responsibilities to individuals and society. It dictates that taxpayers pick up the costs for their harms with Medicaid, Medicare, Social Security, bank bailouts, TARP, disaster relief and assistance, liability caps and limits and countless other governmental measures made necessary by the Hypocritic Oath. Tort reform is not about protecting doctors. It certainly is not about protecting patients, workers, families or society. It is about protecting profits, plain and simple.

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

It is fairly common that those that have been injured in accidents, particularly auto accidents and slip and fall accidents , are receiving Medicare benefits at the time of the accident, or as a result of the accident. What many do not realize is that Medicare has a lien against any personal injury recovery for damages awards or settlements received as a result of the injuries.

It is difficult at times to explain to injured persons the law or the logic behind the liens. In a nutshell, Medicare has the right to recover all Medicare benefits expended to treat the person's injuries. In addition, Medicare can insist on a set aside of personal injury funds for future treatment of those injuries. These liens can be very large in cases of serious personal injuries. On occasion, the size of these liens can render the personal injury recovery process, particularly in complex litigation, futile and a waste of the injured party's time and energy. After all, litigation is extremely stressful and costly. In these cases, the injured person must decide whether he or she wants to work that hard simply to repay Medicare.

The decision to move forward with the personal injury recovery process, and perhaps litigation, is made even more difficult by the fact that recovery itself, and the failure to properly address Medicare liens can result in significant liability, penalties and even forfeiture of future Medicare rights.

Here are the basic ground rules:

• Medicare must be reimbursed within 60 days of the settlement or judgment. This means that the issues must be addressed well in advance of final settlement or judgment to avoid inadvertent violation of the law.
• The defendant, generally the other party's insurance company, must report a possible recovery to Medicare. The defendant is liable to Medicare if the injured party fails to properly address Medicare liens. Consequently, many defendants will make Medicare one of the payees.
• The injured party's attorney is responsible for the full amount of the lien in the event that the injured party does not pay. This means that your attorney will not distribute any funds, yours or theirs, before addressing Medicare.
• The penalties for failure to properly account for Medicare liens are severe. The defendant can be fined $1000 day for failure to notify Medicare of the possible recovery. The injured party and both attorneys, may be all held individually liable for up to double the full amount of Medicare lien.

This all sounds pretty bad. And it gets worse. Medicare is completely non-responsive to attorneys on either side in their attempt to determine the amount of the liens. It can take months to get any response at all from Medicare. The process of negotiating the liens takes even longer. This makes these cases particularly stressful and time-consuming for injured persons. Often, the only thing holding up settlement is the Medicare lien. There are times when the Medicare lien will prevent a settlement. Worse yet, in many of these cases, costly litigation is simply not warranted. The end result is that in some cases the injured party gets nothing, Medicare gets nothing, and the defendant who caused the harm completely escapes accountability. That's Medicare protecting your tax dollars.

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