New Mexico Injury Attorney Blog

Most people who admit a loved one into a nursing home do so because the senior requires constant care that they are not able to personally provide. The nursing home undertakes this responsibility, which includes supervising and ensuring that the resident does not put him or herself in a dangerous situation. Nonetheless, many residents manage to wander or "elope" from the nursing home grounds, which often puts them at high risk for injury, attack, exposure, and even death.

Even though often used interchangeably in the nursing home industry, "elopement" and wandering are slightly different. Elopement occurs when a resident who is unable to protect him or herself goes off nursing home grounds unsupervised and encounters some form of harm or danger. Wandering occurs when a resident with dementia, Alzheimer's, or other psychiatric diagnosis encounters a dangerous situation while moving around the nursing home facility unsupervised.

There is no single set of characteristics that indicate that a nursing home resident is at risk for wandering or elopement. However, there are several factors that a nursing home must take into account when assessing a resident's risk for eloping or wandering. The resident's age and mobility should always be considered. It is more likely for a highly mobile, younger resident to elope or wander than it is for a resident who is recovering from hip surgery. It is also more likely for a resident with dementia or other psychiatric diagnosis to stroll off and put him or herself in harm's way. Also, previous incidents involving wandering or eloping can be indicators that the resident is prone to doing it again.

If a patient is at a high risk for wandering or elopement--say because she suffers from dementia, has no mobility issues, and has eloped or wandered several times in the past--the nursing home may be required to assess this risk and formulate a plan to prevent it. Under the federal Nursing Home Reform Act (Act), 42 USC § 1395I-3, a nursing facility is required to conduct an initial assessment of a resident's capabilities, medical issues, and needs within a few days of admission. If the patient is at a high risk for wandering or elopement, this should be noted on the initial assessment. Based on the assessment, nursing facilities are required to formulate a comprehensive care plan after the assessment is finalized. Subsequent assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident. An episode of elopement or wandering that has resulted in an injury or a high risk of an injury for the patient should prompt an assessment and a new care plan that ensures that the patient does not repeat his or her actions.

Recurring incidences of elopement or wandering resulting in a resident's injury or death may signal nursing home neglect and/or abuse. Wandering and elopement should generally not occur, and when it does, should be detected early enough to avoid injury to the resident if the nursing home follows certain principles and procedures. These include hiring the adequate staff to supervise all of the nursing home residents; train staff properly on supervising residents; install alarms, cameras, and other surveillance devices at exits and entrances as well as near restricted or dangerous locations; adequately assess the risk for elopement or wandering of each individual resident; and having a quick-response plan in place.

While it is true that nursing homes must walk a fine line between not severely restricting residents' freedom of movement and keeping them safe, it is the nature of the care that they offer and something that should always be a priority for staff and administrators. Failure to properly guard against wandering and elopement may constitute neglect on the part of the nursing home. In cases where the patient is injured, this neglect may give rise to a personal injury claim.

If you loved one has been seriously injured as a result of wandering or elopement in a nursing home, it is important to contact an experienced personal injury law attorney right away to fully protect the rights and safety of your loved one.

Related Reading:

• Malnutrition and Dehydration in Nursing Homes


• Nursing Home Abuse and Medication Issues


• Nursing Homes' Patient Records Often Neglected and Occasionally Deliberately Falsified

Collins & Collins, P.C.
Albuquerque Attorneys

An article in the National Journal last year reported that medical mistakes cost the nation's health care system tens of billions of dollars every year. Unfortunately, instead of getting serious about eliminating those errors, many tort reform advocates continue to argue for a change in personal injury laws, including caps on awards for medical malpractice. Far from offering robust healthcare savings, a look at the numbers and malpractice rates shows that the insurance companies are the only real winners in tort reform.

It is no secret that the healthcare industry spends billions of dollars in medical malpractice suits every year. According to Pamela Villarreal of the National Center for Policy Analysis between 18 to 45 cents of every dollar spent on healthcare in the U.S. is related to a mistake made by a healthcare provider. Jill Van Den Bos and colleagues at Milliman's Denver Health Practice reported that in 2008, cases involving post-surgery infections cost the industry $3.36 billion. In the same year, bedsores, a completely preventable condition, cost the industry $3.27 billion.

Considering the staggering costs to patients and medical providers, one might assume that there would be universal focus on making medical care safer. Not so. Instead, certain interest groups are actually working to reduce the degree to which medical providers are held accountable for their errors. New Mexico, for example, places several limitations on damages in civil cases. Under the Medical Malpractice Act (Act), NMSA 1978, there is a $600,000 cap for damages for medical malpractice. The cap excludes past medical costs and benefits, but the Act prohibits monetary damages for future medical expenses, which are paid as they are incurred. The Act also limits an individual health care provider's (or more accurately his or her insurance company) personal liability to $200,000.

Insurance companies argue that tort reform in general and caps on damages in particular are necessary to reduce healthcare costs, lower insurance premiums for medical professionals, and promote improvement in care so that doctors are not engaging in "defensive medicine." Countless studies show that this is not the case. On the contrary, healthcare costs are rising, healthcare insurance premiums are higher, and there is little progress in preventing medical mistakes and malpractice. This is all in spite, or maybe because of, caps on damages.

There is ample evidence to support the proposition that medical malpractice caps have little to no impact on healthcare costs. A 2010 Robert Wood Johnson Study revealed that medical malpractice insurance premiums account for less than 2% of all healthcare costs. According to the same study, there would be very little impact on healthcare costs even if the most stringent tort reform measures were put in place. The 2011 report by Public Citizen, "A Failed Experiment," which studied the effect of Texas' $250,000 cap on non-economic damages, revealed that since the cap has been law, Medicare costs have risen faster in Texas than in the rest of the country and health insurance premiums have risen above the national average.

Similarly, damage caps have not lowered insurance premiums for medical professionals. A National Center for Policy Analysis study was unable to find a correlation between damage caps and malpractice insurance premiums. Other studies have found that premiums rise in response to a broad range of economic factors, not the amount of malpractice payments. Yet others have shown that insurance premiums rise at a higher rate in states with caps than in states without caps. What all of this research shows is that if anything, caps have a negative effect on the cost of insurance premiums for malpractice coverage.

What may be even more frightening is that caps on damages may eliminate the incentive to improve health care in general. There are several studies of hospitals and healthcare centers that have instituted successful prevention programs after being forced to pay out a large malpractice suit. The possibility of an expensive medical malpractice suit has incentivized providers to invest in programs that eliminate errors. Without this incentive, medical providers will have fewer reasons to seek to improve quality and avoid mistakes, resulting in an increased number of deaths and injuries that could have been avoided. As it stands now, it is estimated that up to 98,000 patients each year die as a result of medical malpractice.

As states continue to enact caps on medical malpractice damages, the returns are meager. Contrary to what tort reformers promise, healthcare is getting costlier and less safe for the average person. The only real winners in all of this are the insurance companies.

Related Reading:

• Emergency Room & Emergency Responder Immunity: Safe Haven for Negligence and Incompetence?


• Medical Malpractice Reform Harms Patients and the Taxpaying Public


• The Myth of the Frivolous Medical Malpractice Lawsuit




Collins & Collins, P.C.
Albuquerque Attorneys

Dehydration and malnutrition have become so commonplace in nursing homes that many have called them "the silent killers." According to a study by The Commonwealth Fund, 35 to 85% of nursing home residents suffer from malnutrition, and between 30 and 50% are underweight. Another study published by the Journal of the American Geriatric Society found that an alarming 39 out of 40 residents studied did not receive adequate fluids for every day that the study was conducted. The Centers for Disease Control (CDC) estimated that as many as 208,000 patients over the age of 65 were released from short-term hospital stays with a primary diagnosis of dehydration.

Despite Federal and state laws requiring that nursing homes provide for their residents' nutritional needs, malnutrition and dehydration continue to plague the nursing home system. Under the Nursing Home Reform Act of 1987, 42 CFR § 483.25, nursing homes are required to ensure that a nursing home resident "maintains acceptable parameters of nutritional status," measured by weight and protein levels. They are also required to provide a resident with a therapeutic diet if nutrition becomes an issue. Additionally, if a resident is unable to care for him or herself, the nursing home is required to provide all of the services necessary to ensure proper nutrition.

There are many causes for dehydration and malnutrition in nursing homes. Many nursing home residents often cannot take care of themselves and in some cases need help eating and drinking. According to the Commonwealth Fund study, 40 to 60% of residents suffer from dysphagia, or swallowing disorders. Dysphagia may occur as a result of Parkinson's disease, strokes, dementia, or other neurological disorders. Additionally, 60 to 70% of nursing home residents suffer from some form of cognitive impairment, which in many cases involves patients who require assistance eating.

There are several other reasons why a nursing home resident may become dehydrated or malnourished. In certain cases, depression and cognitive impairment may lead to weight loss. In others, dental health problems that are not properly managed may make the patient unable to eat or limit their diet. In yet other cases, cultural or ethnic preferences may not be available in the nursing home's restricted menu. Some medications, including anti-depressants and high blood pressure medicine act as diuretics; other medications may make a patient sweat more.

There are several dangers involved with malnutrition and dehydration, especially among the elderly. Besides aggravating many existing ailments, malnutrition and dehydration can lead to tooth decay, high blood pressure, and even death. Dehydration can also cause kidney failure, coma, and electrolyte abnormalities.

Under the Nursing Home Reform Act, failure to detect and treat malnutrition and dehydration is a form of neglect. Several studies have suggested that incidences of malnutrition and dehydration can almost always be attributed to understaffing and poor supervision. Solutions as simple as having an adequate number of staff that are properly trained to supervise resident's food and fluid intake and routinely offering a resident fluids or food could avoid a large number of these situations and save lives.

While it is good news that these conditions are almost always preventable, it is also alarming to know that all of the injuries and even deaths that resulted from these conditions should not have happened had the nursing home not been negligent. If your loved one has suffered similar injuries as a result of the neglect of his or her nursing home, it is important address the issue immediately with the staff. If this does not fix the problem or severe injuries have already been suffered, then you should consult with an experienced personal injury attorney to determine whether or not there might be a nursing home negligence or abuse claim.

Collins & Collins, P.C.
Albuquerque Attorneys

Doctors at Monash Medical Centre in Melbourne, Australia announced a new medical trial that will use melatonin in an effort to prevent prenatal fetal brain injuries, including cerebral palsy. The trial will involve 20 women and will go on for 12 months. Even though results are not expected until 2013, there is reason to be cautiously optimistic.

According to the Centers for Disease Control (CDC) one in every 303 children in the U.S. suffers from cerebral palsy. Cerebral palsy describes a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. However, in a large majority of cerebral palsy cases, the damage occurs during pregnancy.

Whatever the cause, cerebral palsy greatly inhibits a child's development and quality of life. The severity of symptoms can range from moderate to severe. Many children with cerebral palsy require life-long, around-the-clock care.

The Monash study builds on previous research by its scientists and doctors who have found a link between intrauterine fetal growth restriction (IUGR) and injuries to the developing brain of the fetus. According to the specialists at Monash Medical Centre, one in 20 pregnant women exhibit IUGR, a situation where the placenta does not provide sufficient nutrients and oxygen to the developing fetus' brain. IUGR is responsible for a large number of cerebral palsy cases, but currently there is little doctors have been able to do in the way of treatment. The Australian study represents new hope in this field.

The doctors and specialists at Monash Medical Centre have spent the last five years studying and observing the causes of brain injuries and IUGR. Their research has established that the brain injury is caused by oxidative stress, where an excess of free radicals causes tissue damage. Free radicals are highly reactive chemicals associated with cell damage.

According to the doctors and scientists at Monash, doses of melatonin could prevent oxidative stress by protecting fetal brain cells. Melatonin is produced by the pineal gland, and besides regulating important functions in the body, such as the wake-sleep cycle, it is also a powerful antioxidant. With its ability to easily cross cell membranes and from blood to brain cells, scientists at Monash hope that melatonin will prevent oxidative damage to cells caused by free radicals.

The Monash study will include 20 pregnant women who will be administered melatonin orally in tablet form if they exhibit IUGR. Research at Monash has already shown that free radical levels in cord blood of IUGR births are higher than in normal births. The trial will also test the cord blood of babies who were given melatonin for free radical levels to see whether the treatment was successful. If successful, a second trial will include 100 women and two- and three-year follow-up exams of babies to test for development of cerebral palsy.

The trial, if successful, could represent major progress in prenatal treatment and hopefully prevent cerebral palsy in some children. There will still be those instances of cerebral palsy caused by medical negligence. The study does not address those cases. If your child has been the victim of medical negligence, then it is important to seek the counsel of an experienced personal injury attorney as soon as possible due to the unique deadlines associated with medical malpractice claims.

Collins & Collins, P.C.
Albuquerque Attorneys

The last thing that a person wants to worry about when they admit a loved one into a nursing home is the possibility of abuse through medication. There are several types of nursing home abuse that involve medication, and it is important to be aware of them to be able to identify and stop this practice.

Many common forms of abuse in nursing homes are related to medication and its administration to the resident, all of which constitutes negligence with potential legal liability. Sometimes patients may be overmedicated, receive medication in the wrong dosage, or be given the wrong medication. In other cases, food and medication allergies are overlooked due to the negligent failure to communicate among staff members regarding medication.

Overmedication, sometimes also referred to as chemical restraint, is often an intentional form of abuse. Overmedication occurs when nursing home staff provides patients with non-prescribed medication or higher doses of prescribed medication in order to pacify the patient. This of course makes the jobs of nursing home staff easier since they need provide little care to incapacitated patients.

Several studies show that an alarming number of nursing homes use chemical restraint to control unruly or problematic patients. In 2010, a California nursing home director was charged with providing anti-psychotic drugs to difficult patients, resulting in the death of three residents. According to the FDA, an estimated 15,000 nursing home residents die each year as a result of unnecessary and off-label use of anti-psychotic medication.

In other cases, the nursing home staff gives residents the wrong medication. This is usually unintentional and the product of understaffing and failure to train and keep accurate records. This practice can cause several serious complications for the patient that may even lead to death.

Administration of the wrong medication presents several dangers. On the one hand, when a patient is given the wrong medication, he or she is not being treated for the condition that they have, and on the other hand, the medication they are being given may harmfully interact with other drugs.

Many cases involving medication entail negligent documentation and communication among staff members. In certain cases, staff members fail to chart the administration of medication causing repeat dosing. In other cases, staff document giving a patient medication when in fact they did not. In still other cases, there is a failure in documenting all of the medications given to a patient, causing harmful drug interactions. Finally, all the medications may be perfectly documented yet the potential serious and sometimes life threatening interactions may be ignored.

If you suspect that a love one is being overmedicated, being given an incorrect medication, given the wrong dosage, exposed to dangerous interactions, over-medicated or otherwise suffering from medication errors, you should address the situation immediately with the nursing home administration.

The first step is to ask to see medication logs and order blood tests. Unfortunately, the next step is often contacting an attorney. This is often the only thing that will get the facility's attention. The New Mexico Attorney General's Elder Abuse Division is a good place to start. If your loved one has been harmed by medication errors, it may then be time to speak with an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Injuries sustained by an infant during the labor and delivery process can lead to a lifetime of special needs and care. The services and supplies needed to bring some sort of normalcy to the injured child can quickly deplete even the most financially stable of families. Compensation for medical negligence or malpractice may ease some of the financial burdens of caring for a special needs child. Yet, this compensation can be quite challenging to obtain due to a wide variety of defenses that may be asserted in a birth injury lawsuit.

In attempting to obtain a legal remedy for a birth injury related to medical malpractice, it is the duty of the plaintiff, the one bringing the suit, to prove the injury resulted when the medical professional breached their responsibility to provide reasonable medical care. This seems like a fairly strait forward statement on the surface; yet, differing interpretations of the terms "duty," "breach" and "reasonable" can complicate proving one's claim.

Defining the standard of care can also present a major obstacle for the plaintiff. The standard of care can differ from medical facility to medical facility, as well as from physician to physician when faced with the same medical event. The standard of care usually must be explained by an expert witness, who describes their opinion regarding the proper response to or method used during the injuring event in question. Both the plaintiff and the defendant are allowed to introduce experts, and these experts can and often do present contradictory positions regarding the proper standard of care, particularly in situations involving a judgment call.

Causation is another factor that can diminish the plaintiff's case, as the defense may allege other possible reasons for the birth injury, like fetal developmental issues, maternal complications or genetic defects. The presence of any of these potential causes may limit or negate the responsibility of the medical professional in the eyes of a judge or jury even where there was medical negligence.

Defense counsel may also rely on how foreseeable a birth injury may or may not have been, given all the data and diagnostics a reasonable physician has at the time of delivery. If risk factors for certain birth injuries are not known beforehand, a medical provider may be able to successfully argue that he was not able to foresee the possibility of birth injury and thus, he did not breach his duty to provide reasonable medical care.

There may be many other defenses that can be alleged to challenge a medical malpractice claim involving birth injuries. Due to the huge level of damages in many birth injury cases, these cases are fought very hard by medical professionals and facilities. The costs and stress of a suit can be significant on the family. It is therefore important that the case be properly evaluated from the outset by an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

A few weeks ago, the Florida legislature had before it a bill that would approve a $30.8 million claim against a public hospital for medical negligence. Even though a jury issued the ruling against the hospital, the plaintiff in the case has been forced to get an actual bill passed through the state legislature before collecting any part of the award. Actually collecting an award after a legal determination is often no easy task. In fact, many corporate and insurance interests continue to push for more and new ways to make collection even harder by limiting the rights of injury victims via tort reform.

What is almost always forgotten in these cases is that if the wrongdoer is not required to pay for the consequences of these errors, then the cost is borne by taxpayers through Medicare, Medicaid, Social Security Disability, home healthcare, rehabilitation, vocational training, unemployment benefits and so on. Judicial fairness, therefore, ensures that the public is not required to pay for the negligence of medical professionals.

In the Florida case, a jury found in favor of 14-year-old plaintiff and his parents in a suit alleging that the hospital's negligence during plaintiff's birth resulted in his cerebral palsy. In 2007, a jury awarded the plaintiff $30.8 million, mostly for future 24-hour care and therapy that he will need for the rest of his life which runs into the millions, and more precisely by the jury's estimation, $30.8 million.

The hospital claims that it does not have insurance coverage and that it would have to cut several of its programs to pay the claim. Having no other remedy, the plaintiff and his parents filed a claims bill with the Florida legislature to force the hospital to pay the award. During the four years since the jury verdict, the hospital has done little to try to settle the claim or negotiate with the plaintiff, with one Florida Senator describing its actions as "stiff-arming" the family. Unfortunately, the hospital's conduct in this suit reflects a trend where insurance companies and large private and public entities seek to intimidate plaintiffs in an expensive game of attrition.

The result is that insurance companies, which have actually seen profits rise in recent years, are able to keep more money it their coffers. Instead, the injured family is forced to lean on the public for resources to provide the day-to-day care needed.

Unfortunately, some continue to push for new laws which would shift responsibility away from wrongdoers and toward the public even further.

At the same time that this Florida case was making national news, Tennessee was in the midst of a very different tort -related debate. Emboldened by the passage of the Tennessee Civil Justice Act of 2011 (Act), the business coalition that supported the bill is now pushing for further liability protection for business, insurance, and health care organizations.

The 2011 Act caps punitive damages at $500,000 and non-economic damages, including pain and suffering, at $750,000. Additionally, the Act restricts the claims that can be brought under the state Consumer Protection Act.

Business coalitions in Tennessee now seek to pass a series of bills that would further curtail individuals' rights to recovery in tort claims. The gist of the legislation is to keep injured people out of court by making these extremely costly and risky lawsuits dramatically more so for plaintiffs. One such bill forces a plaintiff to pay the litigation costs of a defendant if the plaintiff refused to settle and wins less that 75% of the settlement offer at trial. A similar bill would compel a party who loses in a motion to dismiss to pay the litigation costs of the winning party.

Proponents of these bills say that they would prevent the mythical frivolous medical malpractice lawsuits. As insurance industry profits continue to soar while medical malpractice claims decline, it is not hard to see the motive or the interests behind the false logic. The fact is these limits simply shift the burden of these injuries to the public and away from the responsible parties and more importantly their insurers who are picking pockets on both sides of the equation.

Collins & Collins, P.C.
Albuquerque Attorneys

Malpractice insurance premiums for obstetricians are often higher than for any other medical profession. Perhaps it is because the average payment in an obstetrical medical malpractice suit is around $947,000, more than double the payment for other medical malpractice suits.

CRICO Strategies, a Massachusetts-based medical risk management company, released a study in June 2010 of 800 obstetrics-related malpractice cases between 2005 and 2009. The study focused on the top reasons for medical malpractice claims against obstetricians and identified the risks that lead to these suits.

The study found that the top claims in obstetric malpractice suits involved substandard medical judgment or judgment errors (77%), miscommunication (36%), technical error (26%), and inadequate documentation (26%). Other claims included administrative failures and inadequate supervision.

The study also found that 65% of obstetric medical malpractice cases entail "high severity" injuries, which include the death of the mother, the child or both. The three most common allegations within these cases dealt with delay in treatment of fetal distress, improper performance of vaginal delivery, and improper pregnancy management.

A routine delivery can turn into a life-and-death situation for both mother and child in a matter of seconds. In emergency situations the attending obstetrician and medical team must be aware of countless factors in order to make the correct decision and act accordingly. Unfortunately, healthcare providers sometimes lack all of the pertinent information or are too caught up in managing the constantly changing situation to recognize signs of fetal or maternal distress in time to remedy it.

Communication between team members during critical times of problematic and emergency deliveries is paramount. However, since labor complications are infrequent, many healthcare providers lack the necessary communication skills and structures to make decision-makers aware of all of the factors involved.

The CRICO study found that 43% of claims brought against smaller hospitals involve issues that relate to training and education. At other times, especially during second-stage labor, precise surgical maneuvers and specialized equipment may require extensive training and real-time experience. Medical teams may lack the familiarity and preparation to ensure that no harm is done to the mother or child.

In these cases, most of the time it is not one single incident that causes the problem, but a confluence of small mistakes and oversights that combine to create the crisis situation, according to the study. Often, these small mistakes and lapses in communication are not caught in time to remedy the situation. However, had the proper decisions been made and had communication and training channels been in place, most of these situations could have had a better chance for a favorable outcome.

The study emphasizes that accurate interpretation of data and symptoms, controlled and structured communication, and collective decision-making can make all the differences in most cases. Additionally, electronic fetal monitor (EFM) training and frequent, regular opportunities to apply this training are crucial in avoiding many mistakes that result in malpractice claims. The study also emphasizes the value of contingency plans in situations where time is of the essence. Finally, it encourages prenatal healthcare providers to be alert and communicate with their patients and other members of their team about potential risk factors during pregnancy.

If you or your baby have suffered injuries during birth, it is important to contact an experienced personal injury attorney to help identify the specific causes and help you navigate the complicated process of filing a personal injury claim against your healthcare provider.

Collins & Collins, P.C.
Albuquerque Attorneys

Elective surgery is all surgery not arising from a medical emergency that is scheduled in advance. Elective surgery includes a wide range of procedures, from vision correction to plastic surgery to biopsies. Sometimes, these surgeries do not live up to the patient's expectations and unhappy patients wonder if they have a medical malpractice claim against the doctor or healthcare center.

Generally patients who are unhappy with the results of elective surgery do not have a claim against the doctor or healthcare professional. Under New Mexico law, doctors must obtain a patient's informed consent to any treatment or operation. When patients opt for elective surgeries, they are usually required to sign informed consent forms in advance.

Consent forms advise the patient of the treatment, alternatives, and the potential risks of treatment. For elective surgery, consent forms often warn that even simple surgeries carry inherent risks, and that not all patients will get the results that they hope for. By signing a consent form for an elective surgery a patient is acknowledging that the result of their surgery may not live up to their expectations.

Additionally, for elective surgery, most doctors and clinics will not guarantee results. Doctors and staff may inform the patient of success rates and the probability of success, but they rarely guarantee what a particular outcome will be. In the rare case that a doctor or hospital signs a written guarantee of a certain result, a patient may have a claim based on breach of contract, but not medical malpractice unless the medical services provided fall below the standard of care. In sum, in the absence of a written guarantee, patients who are unhappy with the results of an elective surgery may have little legal recourse.

There are some nuances of which to be aware. Without a written warranty, a patient will generally not have a claim against a doctor if their laser eye surgery did not give them 20/20 vision or their nose is not perfectly straight after a rhinoplasty. However, a patient may have a claim if they believe there was medical malpractice involved or they were harmed by the surgery.

Medical malpractice involves a negligent act or omission by a healthcare professional. To be negligent, the person or institution must have acted in a way that falls below the accepted standard of treatment. A forgotten surgical sponge or an infection due to a leaking implant would fall within this category. If at any point the health care professionals act in a way that falls below accepted medical standards, there will be a case for malpractice. This includes the entire medical relationship, from failure to obtain informed consent and giving vital pre-operative instructions to surgical procedures to post-operative care.

It is important to understand the difference between not being happy with a result and actually being injured by the negligence of a doctor or hospital. If there is medical malpractice involved, it is also important to keep in mind that New Mexico has a three-year statute of limitations for most medical malpractice cases. However, there are several issues that may shorten the statute of limitations for many malpractice cases. For instance, claims against governmental entities including state, local and county hospitals or clinics have a Tort Claims Notice deadline that runs in 90 days from the date of the alleged negligence.

Due to the unique deadlines associated with medical malpractice claims, it is imperative to contact an experienced personal injury attorney as soon as possible once you suspect malpractice.

Collins & Collins, P.C.
Albuquerque Attorneys

A typical, healthy infant begins to breathe immediately after birth. If one minute has gone by and a regular breathing pattern has not been established, the child may be suffering from asphyxia, or a lack of oxygen. Asphyxia affects approximately 5% of newborn infants.

After delivery, medical personnel monitor a child's vital signs to insure proper oxygen delivery. These signs include: the child's color, breathing pattern, heart rate, muscle tone and response to stimulation. Asphyxia may be present if an infant's tongue is not pink, if there is any gasping or lack of breathing, if heart beats fall below 100 beats per minute, if there is minimal movement or limpness or if there is minimal response or no response to stimulation.

Asphyxia can be resolved in most infants with resuscitation; however, asphyxia can result in
hypoxic-ischemic encephalopathy (HIE). HIE is brain damage that occurs in infants either before, during or shortly after birth from asphyxia. It occurs most among infants that are full-term, and is a leading cause of impairment which can include motor difficulties, developmental delays, epilepsy and cognitive deficits.

Risk factors for HIE include, but are not limited to:

• placental abruption, when the placenta detaches from the uterus before birth


• prolapsed umbilical cord, when the cord descends through the cervix before the fetus


• maternal hypotension, or low blood pressure


• uterine rupture, including intrauterine hemorrhage


• maternal or fetal cardiac complications


• birth trauma, when injury occurs from instruments or other force used during delivery


• medical negligence

HIE can be detected immediately after birth and diagnosed by neuro-imaging procedures, like an MRI or CT scan. Most likely, however, it is a parent, caregiver or medical professional that notices signs of HIE, like delayed development or impaired motor control as the child ages.

While HIE is usually sudden and unexpected, some preventative measures can be taken to help eliminate the risk. Proper labor management and early awareness of fetal distress by medical personnel may provide some protection. Attention to risk factors can also lead to better preparation for possible complications.

More importantly, expectant parents should go into the delivery process well informed. This includes understanding the importance of fetal monitoring equipment, insuring that fully qualified and properly trained physicians are available during delivery, and knowing patient rights, particularly when it comes to decision-making and second opinions.

In those cases where HIE results from medical negligence, it is important to immediately seek the advice of an experienced personal injury attorney. There are important and unique deadlines in medical malpractice claims that must not be missed.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Center for Disease Control (CDC), cerebral palsy is the most common motor disability among children in the US. In a number of cases, cerebral palsy is caused by a doctor's negligent failure to perform a C-section when conditions deem it necessary.

Juries around the country have recognized that failure to perform a timely C-section when medically necessary is a significant deviation from reasonable standards of care. As a result they often return sizeable medical malpractice verdicts in favor of affected children and families.

The CDC estimates that one in every 303 children in the US suffers from cerebral palsy. Cerebral palsy is the name for a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy greatly affects a child's development and quality of life. The severity of symptoms can range from moderate to severe, and many affected children require life-long care.

Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. Most children display symptoms of cerebral palsy by age three. Around 20% of cerebral palsy cases are attributed to brain damage during birth. In many of these situations, the brain damage that leads to cerebral palsy is caused by lack of oxygen to the brain, known as fetal hypoxia. According to the CDC, fetal hypoxia accounts for roughly 10% of cases of cerebral palsy. Even though only a small percentage of all cerebral palsy cases can be prevented by the timely performance of a C-section, failure to do so can have devastating results for a child and family.

In a number of cases, possible brain damage from lack of oxygen to the brain can be prevented by the timely performance of a C-section. Situations when a C-section becomes medically necessary include when: (1) the baby does not progress through the birth canal and is deprived of oxygen, (2) the umbilical cord is wrapped around the child's neck and the problem cannot be corrected, and (3) prolonged attempts to induce labor have not been effective and the child remains in the birth canal for too long.

When these problems develop, medical professionals often have mere minutes to react before irreversible damage is done to mother and child. There are several ways that healthcare providers can monitor the child for signs of distress that can lead to deprivation of oxygen to the brain. Fetal hypoxia is often accompanied by a change in the baby's heart rate, which should be carefully monitored by healthcare professionals if there are any signs of complications during birth or if there are risk factors associated with the pregnancy.

Unless doctors and nurses are well trained and vigilant, and the hospital has standard procedures in place, these warning signs may go unnoticed and precious time may be lost. In some situations, there is no way to identify signs of distress in time. However, in a large number of cases, the signs are obvious and the physician or medical team simply does not address the need for a C- section in a speedy manner, causing injury and even death to the child. In these cases, doctors and hospitals deviate from the medical standard of care and may be deemed negligent under civil law.

As indicated, medical negligence is not always or even the most common cause of cerebral palsy. However, if your child suffers from cerebral palsy and you suspect medical negligence, it is important to make the determination as early as possible. An experienced personal injury attorney can help you do just that.

Collins & Collins, P.C.
Albuquerque Attorneys

A failure to diagnose a medical condition can be catastrophic to a patient and his or her family. Failure to diagnose occurs in a variety of situation with a variety of medical conditions. A failure to diagnose is not always the result of medical negligence. Even when there is arguably some medical negligence, a medical malpractice lawsuit may be difficult to pursue. However, where the missed diagnosis results in serious injury or death to the patient, then at minimum, the case should be reviewed for possible medical malpractice.

The failure to diagnose cancer is not uncommon. Nor does it necessarily indicate medical malpractice. There are many cases where it most certainly does. A recent medical malpractice verdict in New York provides a good example. In that case, early testing revealed a lump in the breast of a 50 year old mother of 3. The doctor decided to do no further testing concluding that it was not malignant. Instead, he simply instructed her to come back in a year. Upon return 16 months later, the lump had grown to the size of a golf ball.

After extensive radiation and chemotherapy, the cancer went into remission. The injured plaintiff filed suit and a verdict of $15 million was entered against the doctor. Unfortunately, the cancer has now spread to the patient's bones according to news reports. So the seemingly large award may be a hollow victory for the plaintiff and her family.

Had the proper testing been done upon discovery of the original lump, the story would likely be far different for both the patient and the doctor. A simple follow up test to confirm the doctor's erroneous conclusion that the tumor was not malignant would have avoided the spread of the cancer, the pain and suffering of the patient, the massive medical expense associated with treating the cancer, the lawsuit and what may end in the death of an innocent patient.

Unfortunately, this fact situation is far too common. It defies logic why a trained medical doctor at would not seek additional testing upon finding a lump in female patient's breast. But it happens, not just with breast cancer but all varieties of other cancers and other potentially life-threatening diseases.

For patients and families, cases such as these should serve as notice that where the medical profession refuses to act, the patient must be proactive and persistent. This is hard when dealing with medical doctors. We all want to assume that they are infallible particularly when our health or the health of a loved one is involved. But this is far from the truth.

According to the Institute of Medicine, medical errors kill up to 98,000 patients per year. In fact, this study is from 1999 and the problem apparently has grown worse, not better over the years. So it is critical that patients protect themselves. If the doctor will not act to protect the patient, then insist on it to the point of rudeness if necessary. If this doesn't work, find another doctor. Do not assume that the doctor is always right!

And if you are reading this too late to have prevented harm related to a failure to diagnose, contact an experienced personal injury attorney immediately. There are important deadlines that must be met in these cases that when missed will bar your claims completely.

Collins & Collins, P.C.
Albuquerque Attorneys

Cesarean section (c-section) deliveries are the most common surgical procedure performed on women, according to the March of Dimes. In fact, about 30% of the 1.4 million live births in the United States are delivered by c-section, often because it is medically necessary to protect the life of the mother or the child.

Doctors have often thought that pre-term delivery, delivery before 37 weeks of pregnancy, by C-section might give a fetus with a slower than average growth-rate the best chance at normal development. These babies were considered too fragile to endure the vaginal birth process without physical trauma or other complications. A C-section was viewed as a protective measure, in which it was believed that treatment for growth issues could be better dealt with after delivery through an Intensive Care Unit.

However, recent research conducted by the Society for Maternal-Fetal Medicine (SMFM) challenged the widely held belief that a C-section delivery poses no health risks for a pre-term baby who is small in gestational age. The study found that higher rates of respiratory distress were noted in these infants delivered pre-term by C-section. In fact, they were found to be 30% more likely to have breathing issues than pre-term infants born vaginally.

Unfortunately, there may be more repercussions to pre-term C-sections than just breathing issues. C-sections performed even at 39 weeks can be problematic for an infant's brain, which is still developing. Thus, pre-term babies delivered by C-section may also face lifelong physical and developmental problems, including motor control issues like cerebral palsy.

What may have been seen as a protective measure for pre-term infants with growth issues may now end up being an improper medical recommendation. The SMFM study suggests that the best outcome for a slow growth rate fetus might be continued gestation in the mother's womb, particularly if there is no imminent danger to the mother or child.

These are all matters that should be discussed with the expecting mother's doctor. This should be a thorough discussion of all the risks and benefits of a pre-term C-section. If a doctor is recommending a pre-term C-section, then the expecting mother at a minimum should ask for a second opinion.

The doctor's office can be an intimidating place. Patients are often reluctant to ask questions. Many do not want to second guess the doctor. However, asking a question and understanding the risks of a procedure is not second guessing. It is simply a part of good patient care. And honestly, with the risks of a newborn at risks, if the doctor is offended and sees it as second guessing, then the patient needs a new doctor.

A decision that could have life-long devastating consequences to the child and the family should not be entered lightly. Expecting mothers like all patients must take steps to protect themselves. After all doctors are not perfect. Most good doctors will appreciate the patient's involvement. Those that do not are those same doctors that at times remind the medical profession of its imperfections with avoidable medical malpractice lawsuits.

Collins & Collins, P.C.
Albuquerque Attorneys

Most people are aware of the concept of a statute of limitations period which is a time frame in which a claim must be brought or is lost forever. There are many subtleties that must be understood as well and it is these that cause injured people the most problems.

There are different limitations periods for different types of claims. For example, in New Mexico, there is a three-year statute of limitations period for a personal injury claim. Personal injury claims encompass claims in which a person is injured due to a car accident, slip and fall, medical negligence or malpractice and any other type injury to the person that is because of some other person or entity's negligence.

However, that three-year limitation period has some conditions. The three years applies to claims against a person or entity that is not a public entity. Public entities are municipalities, counties and states, and their agencies. There are also numerous hospitals that are public entities, some obvious which are tied to a state university, such as the University of New Mexico Hospital, and some not, with names that do not immediately suggest that the entity is public.

In cases involving public entities, the statute of limitations for bringing a personal injury claim is two years, with a notice requirement that obligates the injured party to notify the potential at-fault public entity within 90 days for a personal injury, or six months if the claim is for a wrongful death.

To further complicate the matter, in New Mexico there is a statute that is applicable to injury claims against some doctors or healthcare providers, but not all. The Medical Malpractice Act (Act), NMSA 1978, Sections 41-5-1 to -29 (1976 as amended through 2008) is stated to be a patient's compensation fund, that provides excess insurance for medical negligence claims worth more than $200,000, excluding punitive damages.

To qualify as a "qualified healthcare provider" under the Act, the doctor must pay a surcharge and have insurance coverage of $200,000 per occurrence or deposit that amount with the Superintendent of Insurance. Pursuant to the statute covering these healthcare providers, any claim must be brought against the doctor or healthcare provider within three years of the date of the negligent act.

This differs signficantly from the general statute of limitations for personal injury actions which requires the action be brought within three years from when the plaintiff "discovers, or reasonably should discover" the existence of his or her claim. The difficulty with the claim against the qualified healthcare provider is that the potential plaintiff might not even know of the existence of his claim until three years AFTER the date of the negligent act. Under the statute, the claim is barred and the potential plaintiff cannot bring his claim.

While there is no good answer to what is arguably completely unfair to a party who has been injured through medical negligence, the best advice is to consult an experienced personal injury attorney immediately when one has a concern that he or she might have suffered harm through medical negligence.

An attorney can quickly determine if the doctor or healthcare provider is a "qualified healthcare provider" under the Act, and file an immediate application with the Medical Review Commission to evaluate the claim. The filing of the panel application stops the running of the statute until the panel makes a decision. After the decision, the claimant can determine if pursuit of the claim is worthwhile or not.

Collins & Collins, P.C.
Albuquerque Attorneys

Babies bring a whole new level of adventure into the lives of their loved ones. Yet, they also bring countless concerns, particularly when they fail to reach conventional milestones, like rolling over, crawling or walking. Combine these with more significant issues as a child ages, like continued difficulty lifting one's head, physical stiffness or an inability to sit without support and the possibility of a motor disability may exist.

Cerebral palsy (CP) is the most common motor disability among children. According to Centers for Disease Control and Prevention, Cerebral Palsy occurs in 1 out of every 303 eight-year-old U.S. children, and approximately 10,000 babies will develop CP each year. It is 1.2 times more frequent in males than females, and the incident rate is significantly lower in Hispanics versus Caucasian or African American children.

Cerebral Palsy is a condition that affects the coordination between the brain and the body's muscles, thus impacting a child's ability to move and maintain posture. It is typically caused when the brain develops abnormally or is damaged during development.

Depending on the area and extent of damage, a child can have a very mild condition which results in awkwardness or clumsiness. More moderate cases may involve involuntary movement, speech problems or muscle tightness. And, more severe occurrences could include sight, hearing or speech impairment, difficulty swallowing, incontinence or mental retardation.

If the damage occurs before birth, it is considered "congenital" cerebral palsy, affecting nearly 70% of the children diagnosed with cerebral palsy. Some potential causes before birth involve infections contracted by the mother, a lack of blood supply and genetic conditions.

If the damage occurs during birth, it is still defined as "congenital"; however, this type only affects about 20% of those with a formal cerebral palsy diagnosis. During birth, a child can have problems from premature birth, delivery complications, having low birth weight or experiencing severe jaundice.

When symptoms appear after birth, typically after 28 days, it is considered "acquired" cerebral palsy. This type affects the remaining 10% diagnosed. Situations that can develop during this time include, a lack of oxygen, bleeding of the brain, or even a brain injury from a fall, car accident or physical abuse.

Of the many ways that a child may suffer cerebral palsy, medical malpractice is only one cause of the condition. The estimates of medical negligence related cerebral palsy vary wildly from 4% to 25%. However, even one case of medical malpractice leading to sever and permanent damage to a child is too many.

If you believe your child has suffered cerebral palsy as a result of medical negligence, you should seek the assistance of an experienced personal injury attorney as soon as possible to insure that your rights and the rights of your child are fully protected.

Collins & Collins, P.C.
Albuquerque Attorneys