New Mexico Injury Attorney Blog

According to the Centers for Disease Control and Prevention, as many as 1 out of every 10 nursing home residents suffer from bedsores. Also known as pressure sores, decubitus ulcers, and pressure ulcers, bedsores may be symptomatic of a greater problem of nursing home neglect.

Bedsores a leading cause of iatrogenic death in the U.S. according to numerous reports. An iatrogenic death is an unexpected death caused by medical treatment. Bedsores are caused by constant unrelieved pressure and poor circulation. They are more likely to occur in areas where bone and skin are in close contact--like the back of the head, lower back, hip, elbow, and ankle areas. People with limited mobility are more prone to acquiring pressure sores.

Bedsores are divided into four stages depending on severity; from stage I, where the site is painful but the skin is intact, to stage IV, where there is large-scale loss of tissue. Pressure sores are treatable if discovered early, but they may be fatal in some cases if not properly detected and treated. Unfortunately, the treatment of bedsores is slow and painful.

Bedsores are among the most common injuries acquired in nursing homes and may signal other forms of nursing home negligence and neglect. The development of bedsores on nursing home residents may indicate several mistakes made on the part of the nursing home staff, from negligent monitoring, to poor nutrition, lack of exercise, lack of hygiene, or improperly managed incontinence.

Despite mobility problems, paralysis, and coma, studies show that most bedsores are preventable if nursing homes are attentive and properly care for patients. In fact, to participate in Medicare and Medicaid, nursing homes must comply with several federal laws regarding nursing home care that specifically address bedsores.

Under 42 CFR 483.25, nursing homes have the duty to prevent patients from developing pressure sores. For patients with existing pressure sores, nursing homes have the duty to provide proper treatment to ensure that the sores heal, do not become infected, and do not spread to other areas.

To ensure their compliance with these regulations, nursing homes often employ a bedsore prevention program that consists of regular evaluations and the development of a care plan. The problem is that in most cases of bedsores, prevention programs and care plans have been in place but have been improperly implemented or ignored by nursing home staff.

What is even more troubling is that in cases where there were allegations of neglect related to bedsores, the accusations were often accompanied by evidence that the nursing home altered records in an attempt to cover up their negligence.

Even though they may be difficult to prevent, nursing homes have a duty to monitor all patients for the development of pressure sores. For patients with limited mobility issues, the nursing home should implement a care plan to ensure that bedsores do not develop. If bedsores are present, the nursing home staff has a duty to discover them in their early, treatable stages, and to provide adequate treatment.

In light of the fact that bedsores in patients may lead to a reduction in Medicare and Medicaid reimbursements not to mention large jury awards, many nursing homes try to shift responsibility to the patient. On several occasions, nursing homes have argued that bedsores were unavoidable due to the patient's old age, mobility issues, and obesity. Other nursing homes have argued that the patient did not comply with medical advice, the patient acquired the bedsore prior to admission, or the patient suffered from a medical complication such as diabetes.

Regardless of all of the above, the nursing home has a duty to evaluate each patient individually, identify bedsores or risk for bedsores, and act accordingly. At no time should bedsores go undetected for an extended period or reach a stage of infection where they are no longer treatable.

If a loved one has developed bedsores at a nursing home this may be a sign of neglect, for which there may be a personal injury claim. If you discover a bedsore, you should demand immediate treatment and a plan to avoid future such issues. If the bedsores are advanced or recurring in nature, you should probably seek the advice of a personal injury attorney to protect your loved one.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent explosion of social media (Facebook, Twitter, MySpace, Foursquare, Tumblr, Linked-In, and many others whose numbers grow daily) is creating a number of risks for its users. Some of the perils of social media have already had extremely negative and well publicized consequences for the imprudent user.

These include loss of employment and employment opportunities, criminal charges, loss of all varieties of lawsuits, discovery sanctions, contempt findings, and on and on. These are just the beginning of the hazards that have been laid by the imprudent and often reckless social media practices of its users. The problems are likely to get worse, and certainly more frequent due to the continuing explosive growth of social media.

Just for a quick look at the numbers. Facebook claims in excess of 800 million users. Twitter is somewhere in the vicinity of 200 million. LinkedIn is growing rapidly topping 100 million. MySpace is in decline but still has a huge membership. Then there are new sites that seemingly pop up on a daily basis.

With each, people have often posted some level of private information, some of which can be quite useful in litigation or even just for sizing up potential associates, partners, employees or others in anticipation of a business (or personal) relationship. These uses should be common knowledge by now which suggests the question of why folks continue to post their most intimate, private and sometimes damaging thoughts, actions, behaviors, hobbies, activities, and so on to the world.

One interesting trend to watch is the use of social media by insurance companies. In fact, insurance companies were among the earliest adopters of the opportunities in social media. For instance, many personal injury lawsuits have been completely undermined by ill-advised Facebook posts such as pictures from ski vacations, frolicking on the beach, hiking, working in the yard and so on which make claims of incapacitating physical injuries from a car accident somewhat difficult to support.

The insurance industry is said to now be scouring social media to find indications of deceit on insurance applications. Such deceit may be a basis for denying coverage on claims. It also may form the basis for higher premiums. After all, those pictures of your partying, boozing, smoking, and sky-diving with your friends may put you in another life insurance premium bracket than the non-smoking, non-drinking, conservative you that filled out the application. There are other possible problems as well with such posts that will have already arisen and most certainly will continue at an escalating pace in the very near future.

Now for the bad news. If it is posted, you cannot get rid of it. It is there for eternity. Not only can't you fully delete these damaging posts, the attempt to delete them can result in very serious consequences too numerous and too complex to address here in closing. The bottom line is that your social media posts are permanent. As Joe Friday might caution, "anything you post can and will be used against you in a court of law" and by prosecutors, your employers, your insurer, your spouse (your ex-spouse), your kids, your neighbor, your dog, and anyone else that spots an opportunity to utilize your posts against you.

One last thing, check your privacy settings!!! Honestly, does this still need to be said?

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

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

With graduation season fast approaching, would be graduation party hosts should keep in mind all the costs of being the "cool parents." In addition to exposure to very serious felony charges for service of alcohol to minors, there is potentially devastating liability for personal injuries and damages associated with DWI related auto accidents.

New Mexico's Liquor Liability Act, often referred to as dram shop laws, imposes a duty and corresponding liability on all social hosts. This includes parents who host a graduation party. In fact, the Act was perhaps geared most to this kind of negligent behavior.

The Liquor Liability Act established varying levels of duties and liability for different situations. At the high end of the spectrum are restaurants and bars who over serve patrons. For these situations, an injured person need only show negligence.

There is a lessor standard for social hosts. In these actions, because the alcohol was not served for financial gain, it must be shown that the social host was "reckless." This is a much higher burden of proof than simple negligence. The standard is long established and most recently set forth in Delfino v. Griffo wherein it was stated, "For a suit against a gratuitous provider, or social host, the plaintiff must show that the host provided alcoholic beverages "recklessly in disregard of the rights of others, including the social guest."

Though a showing of recklessness is a fairly significant hurdle, serving alcohol to minors will most definitely meet that hurdle. The liability runs not only to innocent third parties, but to the minor as well.

In the case of a DWI auto accident, the injuries and damages can be catastrophic including the possible wrongful death of innocent third parties, passengers, and the minor him or herself. The liability for the social host likewise can be catastrophic. It is hardly worth the fleeting moments where the drunken child and his or her teen friends believe the parent to be cool.

Collins & Collins, P.C.
Albuquerque Attorneys

The basis behind the immunity for ER doctors in Texas (and other states following suit) is that medical malpractice claims have made it difficult to attract doctors to emergency rooms across Texas. It is not clear if the objective is to attract competent doctors.

What might be expected for the level of care in emergency rooms as ER doctors are given immunity from their negligent acts? Those doctors that cannot or will not practice medicine safely and competently may well be attracted to the ER. This serves neither the medical profession or the patient. Neither does it serve the healthcare system or taxpaying public as a whole.

The brunt of any negligence leading to serious and long-lasting injury to patients will be borne by Medicaid, Medicare and Social Security Disability. The costs of ER negligence will simply be shifted from the doctor, the hospital and most importantly their insurance carrier to the public at large.

Rather than raise the standards across the medical profession and encourage all doctors to meet higher standards of patient safety, Texas and others have chosen to create a safe haven for those doctors who cannot or will not meet the minimum levels of professional competence.

In the abstract, medical malpractice reform sounds plausible, almost necessary. In practice, these types of measures create unacceptable risks to patients and the public. They will also rightfully undermine the public's confidence in the medical profession. After all, why would a doctor need immunity to protect the doctor from his or her own negligence and incompetence?

It would perhaps not be so bad if Texas were alone in pushing these measures. But many other states, including New Mexico have proposed similar measures. In fact, New Mexico House Bill 372 was introduced this session to give immunity to emergency responders for all but gross negligence.

Rest assured, the future will bring more expansive bills to take the immunity from the scene of the accident through the ER. Once that is done, it will not be long before there will be bills suggesting industry wide immunity from medical malpractice claims. Many states have already placed severely inadequate caps on medical malpractice lawsuits.

Be safe out there! An accident may be the least of your worries. Your life and family may be at risk. But you should can take comfort in knowing your doctor, the hospital, their insurance carriers and all of their respective incomes will be fully protected. And in the end, isn't that what matters most?

Collins & Collins, P.C.
Albuquerque Attorneys

As the New Mexico Legislature considers making texting while driving a crime through House Bill 197, the auto industry ramps up the technology to allow drivers to do just that. And much, much more!

Ford in particular seems to be leading the way on mobile communications technology but others will surely follow. Ford Sync will allow drivers to sync up with all their communications and social media apps. Drivers will be able to check their texts messages, email, calendars, and newsfeeds. Presumably, there will be the ability to respond as well including updating the driver's schedule.

With each and every new feature will come new and dangerously escalating levels of distraction. Long gone are the days when the worst driving distractions were lost french fries and lipstick. Now all the frustration and confusion of the smartphone, the computer, cable television, channel surfing, social media and more will be brought to the dashboard of our and our fellow driver's cars.

Rest assured, these features will not come cheap. Auto manufacturers are not, or least their mission is not in the business of losing money. They will profit at the expense of the safety of drivers. Unfortunately, those that choose not to jump at this technology will still be exposed to the hazards of those that do.

In the end, the auto industry will make money. And with will surely be a significant rise in auto accidents caused by the distractions, they will scream for tort reform and liability limits when cars start piling up on our roads. They will scream for market freedom to allow drivers to adapt the technology and the right of industry to profit from the technology. Some may both support auto industry's right to profit with the technology while also making it a crime to use it.

On the other hand will be those hapless drivers who thought the technology was safe and legal. It was all built right into the dashboard for goodness sake? It will be those same hapless drivers who at best are charged criminally for their behavior and at worst endanger their own lives and the lives of others as they twitter their way down the road.

Collins & Collins, P.C.
Albuquerque Attorneys

When involved in a car accident, among the first task often undertaken is an investigation of the other driver's driving record. It is thought that this evidence will be used at trial to show that the driver was negligent in causing the accident.

In fact, the rules of evidence do not allow the use of prior accidents to show that the driver was negligent in causing the accident. In other words, you cannot use prior negligent behavior to show that the person acted in a similarly negligent manner in causing the accident.

However, the prior accidents and prior driving history may be used for other purposes. Perhaps among the most important and most common use of prior bad driving is to prove a negligent entrustment claim. A negligent entrustment claim essentially states that the defendant was negligent in knowingly allowing a negligent driver to drive the defendant's vehicle.

Negligent entrustment claims can come up in a host of circumstances spanning every situation where an owner of a vehicle allows a negligent driver to drive his or her vehicle. Among the most common are cases where employers allow employees with bad driving records to operate company vehicles.

In fact, these were the facts in the 1991 New Mexico Court of Appeals case of DeMatteo v. Simon. In that case, the defendant construction company had allowed a driver with a history of auto accidents and traffic violations to operate its company vehicles. Interestingly, the company acknowledged that that it knew of his many traffic offenses and a number of auto accidents. However, the company denied full knowledge of the employee's rather atrocious driving history stating that he would not have been hired had it been known.

Though the company denied full knowledge of the driver's history, it was clear that the company both had the capacity to conduct a full driving background check and failed to do so. The court stated that the company's knowledge of the employee's questionable driving practices and its failure to investigate further before entrusting him with a company vehicle showed an "utter indifference for the safety of others" providing a possible basis for punitive damages against the company.

In the end, the employee's bad driving history was not admissible to show that he was driving poorly at the time of the accident. However, it was admitted to show negligent entrustment which proved far more costly to the company than a simple showing of negligent driving.

Now for the bad news. The case has significance far beyond the facts of the case. As stated, negligent entrustment can arise in a wide variety of situations including allowing teenage family members to drive the family vehicle. Maybe a conversation with the teenage drivers in the house is in order. Sometimes parents must use every tool in their arsenal. Now parents can cite to New Mexico case-law and the possibility of devastating punitive damage awards to support their arguments for safe driving habits.

Collins & Collins, P.C.
Albuquerque Attorneys

A study from the New England Journal of Medicine shows that hospital safety is not improving. The study was conducted from 2002 to 2007 in North Carolina hospitals. Though limited to North Carolina, it was suggested that the findings were reflective of national trends.

The findings are troubling for a number of reasons. The study is the first large scale study of hospital safety since the 1999 study from the Institute of Medicine that found up to 98,000 deaths and over one million injuries occur each year in the United States as a result of medical errors. Apparently, these numbers have no improved nor have they been widely disputed.

The study was focused on North Carolina due to the state's hospitals high level of involvement in programs designed to improve patient safety compared to hospitals in other states. Despite North Carolina's emphasis on patient safety, the study found that 18% of all hospital patients suffered harm as a result of their medical care. Of those, over 63% were preventable. Many of these errors lead to serious injuries with 2.4% ending in the patient's death. Perhaps in light of North Carolina's emphasis on patient safety which is lacking elsewhere, it is generous to extrapolate the findings to the rest of the nation's hospitals.

Remarkably, the study found that many of the errors were the result of failures to implement proven safety measures, some of which would appear to be obvious. The study is perhaps most troubling in light of the political climate surrounding medical malpractice lawsuits and the continuing myth of the medical malpractice lawsuit crisis. Opportunistic politicians, the insurance industry, many in the medical profession, and of course the Tort Reform movement ignore the reality of medical negligence. Instead there is a continued pressure for caps on medical malpractice awards. There are even those that would ban them completely.

These arguments are meant to protect insurance company profits. They do nothing for the medical profession. After all, is denial of the problem beneficial to the medical community? They certainly do nothing to protect the public.

To put the dangers of medical care in perspective (up to 98,000 American deaths and over a million injuries each year), lets take a look at gun related deaths. During the entire Vietnam War from 1958 to 1973, there were around 58,000 American soldiers killed. Since March of 2003, there have been around 4500 American soldiers killed in Iraq. The Center for Disease Control found that in 2002, there were 30,242 firearm-related deaths in the United States which included 17,108 suicides, 12,129 homicides and 1,005 undetermined/unintentional firearm deaths. The 12,129 homicides included legal intervention and war.

Add it all up with two major wars and one year of all gun related deaths (intentional, military, law enforcement, suicidal, accidental) and hospitals are still more lethal to Americans. Keep these numbers in mind the next time your hear a politician decry the attack of trial lawyers on doctors. You might also keep it in mind before your next hospital visit. Then finally you might ask what kind of greed, cynicism and opportunism would motivate a politician, insurance company or talk show host to argue against the only real protection and compensation afforded patients when they are harmed.

Collins & Collins, P.C.
Albuquerque Attorneys

"Hypertexting" and "hypernetworking" are terms coined for excessive behaviors associated with cell phone and social networking activities. Hypertexting is defined as sending more than 120 text messages per day, while hypernetworking is described as spending more than three hours per day on social networking websites. Unfortunately, the excessive amount of time a person engages in this type of activity may not be the only problem.

These types of activities may actually be associated with risky behavior which could lead to health problems among teens, according to a recent study conducted by a team of researchers at Case Western Reserve University School of Medicine. Both activities were the subject of a study involving a sample of 4,200 Midwest high school students, 19.8% of whom were identified as teens that engage in hypertexting and 11.5% of whom were identified as teens who engage in hypernetworking. Approximately 4% of teens were identified as engaging in both activities.

The research team found that teens who fall in the hypertexting category are 40% more likely to have tried alcohol, 41% more likely to have used illegal drugs, 55% more likely to have been involved in physical fights and nearly three and a half times more likely to have had sex. The data for teens who participate in hypernetworking is even higher, with 79% more likely to have tried alcohol, 84% more likely to have used illicit drugs, 94% more likely to have been involved in physical fights and 69% more likely to have had sex.

While the research did not lead to a direct causal link between the activities and risky behavior, it did so a correlation indicating the possibility of a new category of health risks among teens who participate in either hypertexting or hypernetworking. Other factors could be to blame as well, including peer pressure or a lack of parental supervision. Yet, more research will be necessary to determine if there is an actual cause and effect relationship between teens who engage in the excessive use of communication methods and risky behavior leading to health problems. In the meantime, the study results should come as a warning to parents who provide teens with unrestricted access to communication devices.

New Mexico's family purpose doctrine arises frequently in car accidents. The situation most frequently arises in personal injury claims where a child or young adult has caused an accident, and the inured party seeks recovery against the parents.

Questions arise frequently on both sides of accident. The person injured as a result of the accident will want to know may be held responsible for the accident. The other side, often the parents, will want to know the extent of their own liability for the accident. The issue is particularly important when the vehicle the child is driving is uninsured or underinsured. In New Mexico which leads the nation in uninsured drivers, this problem arises as often as not.

The law in New Mexico is pretty well established as set forth in the 1987 Supreme Court case of Madrid v. Shryock. The holding in Shryock has been codified in New Mexico Uniform Jury Instruction §13.1210.

Essentially, the law states that if the car was provided for general use for family members and/or was provided for use to the negligent driver for any purpose, then the head of household is liable for any damages caused by the negligent driver. It must be established that the head of household, typically a parent, provided the car to the negligent driver.

Incidentally, the Court in Shryock found that the facts did not meet the family purpose test. The young man who caused the accident actually owned the vehicle. He made all payments for the vehicle, insured the vehicle and paid for maintenance from his own personal funds. The only connection between his parents and the vehicle was the fact that they had co-signed on the financing. The Court found this was insufficient for liability for the parents.

The Court laid out the requirements in terms of control over the use of the vehicle stating:

Nothing was produced to overcome Vincent Madrid's denial of authority to control the use of the vehicle. Steven asserted that only he had such authority and, in fact, only he exercised that control over the use of the vehicle. The mere facts that Steven lived in the family home and that a family member was a passenger in the vehicle at the time of the accident are insufficient to establish a "family purpose."

In this case, the injured party is limited to recovery against the driver and his insurance company. In many cases, the result might be much different turning on the control of the vehicle. Evidence of control would include financial responsibly for car payments, auto insurance and maintenance among other factors. For those parents who do exert control over the vehicle, they would be well advised to carry ample liability coverage.

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

FISA, the Foreign Intelligence Surveillance Act of 1978, was originally passed to allow surveillance of communications between foreign powers, foreign intelligence agencies, and their agents. Since 911, FISA has been greatly expanded through various amendments including the Patriot Act. The expansion of FISA allows virtually unfettered governmental monitoring of online and telephone communications of American citizens.

In order to facilitate the monitoring of telephone communications, Congress passed the FISA Amendments Act (FAA) of 2008 which granted the National Security Agency (NSA) virtually unlimited authority to spy on Americans. In addition to legalizing warrantless surveillance (no need for reasonable suspicion of wrongdoing), the legislation provided for what the ACLU terms "dragnet" surveillance of international phone calls and email, again without a warrant and without any suspicion of illegal activity.

To accommodate the new surveillance powers, Congress then passed the Communications Assistance to Law Enforcement Act (CALEA) which requires phone companies to make their networks "wiretap-ready."

Many Americans accept this as a reasonable response to 911 and the threat of terrorism. Perhaps, heightened surveillance authority is justified in the post 911 world. For both those that like to see the world in black and white, it applies to good guys and bad guys equally. It applies to those that oppose the intrusions on privacy as well as to those that fully embrace it.

Most Americans spend a fair amount of time online. There are 500 million Facebook members. There are hundreds of millions of online purchases each year. There are hundreds of billions of emails sent and received by law abiding citizens. Unfortunately, the protections that the government seeks to invoke and many Americans whole heartedly embrace may expose all these law abiding citizens to breaches of privacy. These breaches may be seemingly mundane such as the recent issue with Facebook. Others may be catastrophic to both innocent consumers and to the economy as a whole.

It takes little imagination to see how this might happen. The government is now seeking to force all online platforms to make their software open to government surveillance. Basically, the government will require a "backdoor" to allow free and easy access for governmental use. Many would ask, "So what?" Fortunately, these folks do not need me or anyone else to answer that question. A simple Google search on internet privacy breaches will result in millions of results. Search again for online credit card security breaches and find millions more. Mull around for a while and ask yourself if you want a backdoor built into all your "private" online communications and purchases.

Unfortunately, the most gifted computer programmers do not always work in government. Nor do they always have benign purposes. Even those that do not mind the NSA poking around in their online activity might think twice about the 19 year old hacker prodigy doing the same. It all makes one miss the postman.

To follow the FISA Amendments, take a look at the ACLU challenges to the laws. A visit here might open your eyes to the problems with the FISA Amendments while also shedding some light on the value of the ACLU's work, which is widely misunderstood and regretfully much maligned.

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

Dramatic increases in auto accidents involving cell phone usage have precipitated the call for tougher state and local ordinances. Nationally, in 2008 there were approximately 1.4 million crashes involving drivers talking on cell phones. Many of these involved serious personal injuries to the drivers on both ends of the exchange.

In February of 2007, Albuquerque enacted a hands-free cell phone ordinance for drivers operating a motor vehicle. This ordinance makes it illegal to drive and operate a hand-held cell phone. Albuquerque drivers can still use a hand-free device, which the city feels is a safer option.

Many drivers have moved to hands-free cell phone usage in response to such laws. Auto manufacturers have accommodated the switch to hands-free. According to a study by National Safety Council, hands-free cell phone usage unfortunately appears to be just as risky as using hand-held devices. Statistics show that a driver who uses either type of cell phone is four times more likely to be involved in a motor vehicle collision. Cell phone conversations in general increase cognitive distraction and create what has been called "inattention blindness".

Inattention blindness occurs when a driver is looking at but not actually perceiving objects in their field of vision. There are estimates that indicate a driver using a cell phone misses approximately 50 percent of the information within their surroundings. The current hands-free ordinance may give a false impression that this type of device provides more safety.

While a hands-free cell phone does eliminate the need for a driver to take their eyes off the road and remove their hands from the steering wheel, it does not prevent the driver from taking their mind off the road. In addition, a driver is less likely to recognize that they are cognitively distracted and to account for the risks.

Drivers tend to rely on the myth that they are "multitasking", accomplishing more than one task at a time. Multitasking has been found to be a myth. Instead, there is sequential tasking. The human brain actually handles tasks sequentially, switching between tasks rapidly enough to give the illusion of doing several things at once.

Talking and driving are two very cognitively complex activities, and the switching between these tasks can create inattention blindness. This means that crucial information needed to maintain safety may fall out of view and is not processed by the brain. Both driver reaction and response times are diminished when this occurs.

Obviously, the safest option is to avoid cell phone usage of any kind while driving. However, in our productivity-driven society, this may not be realistic. Studies have shown that educating drivers of the risks has done little to alleviate the problem. Consequently, the most effective prevention strategies have included legislative policies and strict law enforcement.

Albuquerque has attempted to respond to the need to protect drivers from cognitive distraction with its current hand-free cell phone ordinance; however it is likely that the city will reexamine this policy in light of the new statistics. Future strategies may be needed, which might include technological advances that actually prevent a driver from receiving or making calls in a moving motor vehicle.

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

"Cyber bullying", "cyber stalking", "online predators"; these are only a few additions to the English language that advances in computer technologies have created. Unfortunately, these are not just words, but real issues that children could face when participating in online activities.

One of the most popular online activities accessed by children today is social networking, also known as "virtual communities". Social networking services allow users to create personal profiles that can include photographs, in an attempt to share information and stay connected with others. It is estimated that approximately 72% of teens have a profile on a social networking website, and of these profiles, nearly half can be viewed by anyone.

Access to a child's personal profile can create a host of dangers, including threats by cyber bullies and online predators. However, there are remedies for reducing a child's exposure to these dangers. One such tool is an online monitoring service. This service searches through public online activity and generates reports that parents can use to detect dangers. These services are also an effective tool in creating an awareness of what types of information can be publicly viewed.

Online monitoring services pay particular attention to social networking sites and identify where a child has an account. Then they look for "red flags" or key words that the child has written to others or received from others. These could be words like "suicide" or "sex". Keyword flags could point out possible cyber bullying situations or even risky relational activity. The monitoring service can then attempt to locate individuals who are engaging in inappropriate contact, so that further action can be taken to eliminate it.

These services can also monitor the contacts or "friends" a child has accepted through their social networking site, and notify parents of anything suspicious. Depending on the service, names can be run through various databases that register sex-offenders or other criminal activity.

Threats to reputation may be one danger that both parents and children may not be aware of. Information posted on social networking sites has the potential to remain on the internet indefinitely. What might have been a childish indiscretion or prank may come back to create questions surrounding a person's character later in life. Consequently, this information could be harmful for future educational and employment opportunities. Once alerted to potentially damaging information, parents can teach their children about the responsibility of protecting their reputation.

Ultimately, parents need to have some awareness of their child's online activity and be able to communicate the apparent dangers. However, it is not always possible to monitor everything a child sees or does online. Online monitoring services cannot replace parental vigilance but they may offer a good option for filling in the gaps.

Collins & Collins, P.C.
Albuquerque Attorneys

Bullying has long been a problem in schools. The problem has been getting a lot of attention recently with some troubling new twists to an age old problem.

There was Tyler Clementi's suicide on September 22 following his roommate's live streaming of some very private moments on to the internet. The behavior of the roommate was atrocious and inexplicable. The suicide of a promising college student is shocking to say the least.

The case follows on the bullying related suicide of Phoebe Prince , a 15 year old high school student. There are countless other bullying related tragedies like these.

Perhaps, none is more shocking than the most recent suicide of a 10 year old girl. It is believed that her suicide was bullying related. The thought of a 10 year old committing suicide would be incomprehensible as a result of bullying if not for the fact that this was not the first such incident. In April of 2009, an eleven year old boy committed suicide as a result of bullying.

The bullying can range from psychological and emotional abuse to outright physical violence. The result is often the same. In response to the problem, 45 states have passed legislation addressing school bullying.

Much of the legislation is preventive in nature addressing education and awareness. Often, the legislation lacks any remedial measures for the victims of school bullying. However, as the culprits in the Phoebe Prince and Tyler Clementi cases have found, there are serious possible criminal consequences to the behavior. Criminal liability for the bullies does not address the culpability of the schools that often ignore or foster the bullying behavior.

The schools do have a responsibility for monitoring and preventing bullying behavior as many school systems have found through some sizable personal injury lawsuits. Schools, administrators, teachers and coaches cannot turn a blind eye to bullying. They have a duty to protect the students in their care.

This duty has never been more clearly breached than the case of the Las Vegas, New Mexico football program where numerous underclassmen were raped with broom handles as part of a sick and apparently tradition bound hazing ritual in the program. The students that committed the atrocities have since been convicted and sentenced to various terms of probation and jail.

The school, the district, the teachers and coaches that stood idly by as the crimes were committed will soon understand the depth of their responsibility. Unfortunately, this epiphany will come only as a result of the personal injury lawsuit filed against these folks.

Perhaps, these individuals and the school district do not read the press about the horrible consequences of school bullying. You can bet they will be reading the legal pleadings filed against them. It can only be hoped that other school officials across the country will do likewise. Clearly, many schools have failed to recognize and respond to the harm to their students. Hopefully, schools and school districts will take note of the huge costs of such negligence.

Collins & Collins, P.C.
Albuquerque Attorneys