New Mexico Injury Attorney Blog

It has long been a practice of the pharmaceutical industry pay doctors for a variety of purported purposes such as consulting research and speaking. As often as not, these payments are intended to and do effectively influence the doctors in the prescription of the drug companies' products.

There are many doctors that make significant income off these arrangements. It is not unheard of for the doctor to make more from the drug companies than from his or her medical practice. The potential for conflicts of interests hardly needs stating.

A new law when passed will require pharmaceutical companies to disclose all payments to doctors. This will include research money, speaking engagements, travel, meals and even according to the New York Times, bagels and coffee brought for the doctor's office staff on visits from the pharmaceutical sales representative.

Research has shown that these pharmaceutical practices, until now somewhat in the dark, do in fact influence doctors' prescription habits. Among the more troubling findings is that doctors often will prescribe the medicines off label for unapproved purposes despite obvious dangers of such off label prescription practices.

It is hoped that the new law and disclosure requirements will increase the chances that doctors are making drug prescription decisions based entirely on the well-being of their patients. In addition to the light that these financial disclosures will shed on current and future practices, they may also reveal possible issues related to past practices of both drug companies and doctors.

There has been significant evidence that these payments influence treatment decisions. Of particular interest will be the financial incentives given to doctors for the prescription of known dangerous drugs such as Actos which has been shown to cause bladder cancer. It will also be interesting to understand doctors' incentives in prescribing drugs off label.

The New York Times found that the doctors that benefit from these pharmaceutical payoffs practice medicine differently from their counterparts who do not. These doctors are more willing to prescribe risky drugs and to prescribe drugs for unapproved uses. Sometimes they do both according to the Times when for example they prescribe powerful antipsychotic drugs to children.

This all sounds good so far. The penalties range from $10,000 to $100,000 per violation. However, the maximum fine is only $1 million per year. When speaking of pharmaceutical companies that bring in billions upon billions of revenue each year, this is a pittance and a small cost of doing business.

Due to the relatively low fines for violations, these practices will likely continue unabated at least from the pharmaceutical industry side of the equation. What is far more interesting and far more likely to effect change is the potential light this will shed on individual doctors and medical providers which may lead to medical malpractice claims. In fact, isn't the discussion that we should be having about a doctor's duty to disclose conflicts of interest that might be detrimental to the health of his or her patients?

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

A recent verdict against a nursing home corporation in West Virginia has stirred a renewed push for tort reform and limits on medical malpractice awards. A West Virginia jury awarded over $90 million to the family of a patient that died within 3 weeks of admission to the facility. Rather than outrage at the continuing and pervasive neglect of our parents and grandparents in nursing homes, corporate America through the guise of citizen groups have used the verdict as a call for further restrictions on the rights of injured patients to recover for injuries suffered at the hands of profit driven policies that inevitably lead to tragedy each and every day throughout the country.

The facts of the West Virginia case are not dissimilar to countless other cases of nursing home abuse and neglect. The 87 year old patient was placed in the care of the Manor Care Heartland facility. It was to be a short-term stay as the family awaited admission to another facility. It was argued and accepted by the jury that nursing home staff immediately confined the patient to a wheelchair despite her ability to walk. This is not uncommon for reasons that became obvious to the jury.

Testimony of the facility's staff showed that the facility was severely understaffed. It was shown that it was impossible to care for the number of patients adequately at the staffing levels that existed at the facility. What's the solution to a short-handed staff? Immobilize the patients. This is done in nursing homes throughout the country in a variety of forms. Often, the patient is simply confined to a wheelchair. Other times, with less compliant patients, the facilities will resort to medication to keep the patients immobile. This practice of chemical restraints comes in many forms, some subtle, some not.

Unfortunately, an immobilized patient will suffer all varieties of health related issues related to the lack of mobility. Worst, as here, an immobile patient seemingly content in his or her resting state become invisible to the overwhelmed staff. As the saying goes, the squeaky wheel gets the grease. When the patient does not make a peep, and the facilities are understaffed in order to enhance profits, the inevitable result is neglect. In the West Virginia case, the neglect was so severe that the patient was denied even basic necessities such as food and water. The result, in her brief 3 week stay which was intended to be temporary, the poor woman died of gross neglect.

Immediately, the cries went out from all variety of corporate driven groups with deceptive names suggesting citizen outrage for the reform of the jury system. Naturally, corporations want to limit their financial responsibility for their misdeeds. This ranges from product liability, to oil spills, to corporate owned hospitals, to nursing homes and on and on. These cynically named so-called citizens groups argue that the jury system is causing untold damage to the American way. They argue that corporations should be allowed to police themselves. After all, the corporation will suffer enough from the loss of business associated with their negligent ways. Other financial deterrents such as bothersome jury verdicts are completely unnecessary.

It is interesting to look at just the very recent past in the nursing home industry to understand why this is such an insincere, cynical and profit driven position. In fact, even these seemingly astronomical verdicts have little impact on industry practices since the simple fact remains that less staff means more profits. Last year, a California jury awarded $677 million on a class action nursing home case. Closer to home, a New Mexico jury awarded a $54 million in a nursing home neglect case. That case involved a woman who slowly bled to death in her bed while staff failed to provide even basic care such as periodically checking her vital signs. Then the nursing home created false records and concealed evidence, including the bloody sheets on which she died, in order to cover up the wrongful death.

Naturally, concerned citizen groups around the country flocked in each of the cases to the defense of the nursing homes right to behave negligently while maintaining profits. After all, what citizen wouldn't value the profits of nursing home corporations and their insurance carriers more than the well-being and care of elder family members and loved ones? Despite the minor inconvenience to patients associated with gross neglect I know that I sleep better knowing that nursing home companies are maintaining the bottom line. I for one would not want the health and well-being of my family to in any way intrude on those profits. As a "concerned citizen," that would be un-American.

Collins & Collins, P.C.
Albuquerque Attorneys

If a doctor did not diagnose your medical condition and you suffered harm because of the lack of a diagnosis, you may have a claim against the doctor for medical malpractice. If you think you have a claim against a doctor for medical malpractice, contact a medical malpractice lawyer as soon as possible.

A medical malpractice claim may arise against a doctor if the doctor acted outside of the ordinary standard of care. In other words, if the doctor did not act in the same way that another doctor would act in the same situation, the doctor may have violated the duty of care.

A medical malpractice claim for a doctor's failure to diagnose a medical illness or condition may be successful if the doctor failed to order tests that are routine for a patient displaying your symptoms. In addition, if the doctor had the results from a multitude of tests that indicated your condition, but the doctor was unable to make the proper diagnosis, you may have a successful case against the doctor for medical malpractice. A misdiagnosis of a condition may also qualify as medical malpractice.

All this seems pretty simple. Now for the bad news. To be successful in a medical malpractice claim for a doctor's failure to diagnosis a medical condition, the plaintiff must hire a medical professional to testify against the negligent doctor . The expert witness must have the same expertise as the defendant, and should be able to explain what an average doctor would have done in the same situation. For example, if the defendant is a neurologist, the plaintiff's expert witness should also be a neurologist to establish what the standard level of care is for a neurologist.

There a two major and related hurdles to this threshold requirement. First, few New Mexico doctors are willing to testify against their local colleagues. As such, it is typically necessary to hire an out of state expert. This leads to the second problem. Out of state medical experts are extremely expensive.

Even armed with a costly expert, proving that a doctor's actions fell below the standard of care is not always as easy as a patient or his family may expect. In fact, it is quite difficult. In New Mexico, most medical malpractice claims must go before the Medical Review Panel prior to filing suit. The Panel often finds at this early stage that there was no negligence. This result is often the outcome even when the patient or his attorneys have expended great costs on a medical expert to prove the doctor fell below the standard of care. Though a bad outcome at the Medical Review Panel does not prevent a patient from filing suit, it will definitely cause some concern for the attorney who is looking at countless hours and very costly litigation ahead.

Even if the plaintiff establishes that the defendant breached the standard level of care owed to a patient to diagnose a medical condition, the plaintiff must still show that the failure to diagnose caused the plaintiff harm. If the plaintiff became severely ill, suffered permanent damage or died because of the doctor's failure to diagnose the medical condition, the resulting harm caused by the doctor will be easier to prove. However, even in these seemingly straightforward cases, the injured patient may have suffered a host of preexisting medical conditions that contributed to the damages. The doctor and/or his insurance company by argue that these override the medical negligence and should preclude or greatly reduce recovery.

In short, these cases are very difficult and expensive to pursue. The frivolous medical malpractice lawsuit is largely a myth created by proponents (i.e. insurance companies and corporate interests) of tort reform. Doctors, hospitals and most importantly their insurance carriers fight these cases very hard. They fight the clearly baseless cases. And generally they fight the meritorious cases just as hard. A brief review of the news illustrates this reality when medical malpractice has reached record highs while medical malpractice lawsuits continue to plummet.

Sadly, though medical malpractice is quite pervasive, very few injured patients will be compensated for their injuries. This applies equally to what most would regard as a simple matter of showing that the doctor failed to diagnose a serious and obvious medical condition. Until patients/voters recognize the cynical myths created by the Tort Reform movement, medical malpractice will continue to rise, insurance companies will continue to profit on the backs of both doctors and patients, and innocent patients will continue to be harmed in mass. Unfortunately, few voters recognize this until they become an injured patient.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the law generally calls for joint liability for tortfeasors in personal injury cases. In other words, each of the negligent parties will be responsible for the pro rata or proportional share of injuries and damages caused by his or her individual behavior.

However, there are a occasions when one negligent party is jointly and severally liable for subsequent injuries caused by another negligent party. This means that the first party is responsible for both the original injuries caused by his or her negligent as well as subsequent injuries arising out of the first. The second set of injuries are said to flow naturally from the first.

Though there are many, one fairly common example involves an auto accident followed by negligent medical treatment. In a case like this, the negligent party that caused the accident will be held liable for any damages subsequently caused by negligent medical care. The second set of injuries flow from the original auto accident.

The rationale for providing for joint and several liability on the first tortfeasor is that the later injuries are both predictable and somewhat to be expected. This might seem illogical to some who would argue that it is impossible for the first tortfeasor to predict or anticipate the negligence of a doctor. This argument is particularly misguided when viewing the numbers on medical malpractice. In light of the statistics, not only is the negligence predictable, it could be argued that it is to be expected.

it is estimated that up to 98,000 patients die each year as a result of medical malpractice. Countless others are badly injured. The 98,000 figure is actually an old figure. These figures apparently are growing worse. For instance, hospital infections and medication errors are almost routine these days. A report from Health.com found that a random sampling of 100 hospital charts across the country would on average find 40 errors. That for the mathematically challenged is a 40% error rate. In no other profession would such a high level of error not only be acceptable but be met with arguments for less accountability.

The high levels of medical error coupled with caps on medical malpractice claims indeed validate the logic behind joint and several liability in these cases. Moreover, the constant cries for medical malpractice caps and the push toward banning these suits completely as evidenced by laws such as those in Texas providing immunity to emergency room doctors make it clear that the original tortfeasor may offer the best and sometimes only avenue for recovery.

The issue of joint and several liability for negligent medical care following injuries may come up in wide range of personal injury matters. Many of these cases, such as slip and fall accidents, dog bites, construction accidents and so on, involved medical treatment. Far too many end in trips to the emergency room. Judging by the numbers, this may be the most hazardous part of the accident.

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

The argument for medical malpractice reform centers around the high costs of medical malpractice insurance premiums associated with frivolous lawsuits. To support this argument, there was first the creation of the myth of frivolous medical malpractice lawsuits. To bring the argument home, an additional myth was created.

The second myth is that a reduction in medical malpractice litigation will bring down the medical malpractice insurance premiums for doctors. In fact, the number of medical malpractice lawsuits has been in sharp decline over the last ten years. Medical malpractice claims are brought to successful conclusion at trial in about 3% of claims.

Logic would dictate that doctors should be seeing significant savings in medical malpractice insurance premiums. These savings would then be passed on to patients and taxpayers through lower costs of medical care. Lets not hold our breath as we wait for the insurance industry to pass these savings on.

The point is seen most clearly in California where there state regulators are investigating dramatically inflated premiums. In an aptly name article "Calif regulator: Malpractice insurance too pricey" from the Silicon Valley Mercury News, there were some interesting but not too surprising findings on the topic.

The article states that on average, California insurers pay out around 23% of premiums for claims. This seems like a pretty respectable profit, perhaps even a little high. Medical malpractice insurance carriers on the other hand cannot live with a meager 400% margin. According to the article, the largest medical malpractice carrier, The Doctors Company, spends only 10% of premiums on claims. Some other providers pay as little as 2% of premiums on claims.

Where do savings from the highly successful 30 year Tort Reform campaign go? According to California regulators, they certainly do not go to doctors, patients or taxpayers. They go entirely to the insurance industry, which really was the point all along.

You have to hand it to the insurance industry. Its public relations and marketing efforts at distorting the reality of medical malpractice costs are remarkable. Its business model is beyond compare. After all, who can question the business savvy of an industry working off 90-98% margins while successfully crying hardship and distress every dollar of profit along the way.

Collins & Collins, P.C.
Albuquerque Attorneys

Medical malpractice reform is all the rage in politics these days. President Obama even seems to have jumped on the bandwagon. Many states are lining up to pass their own versions of medical malpractice caps under the guise of protecting doctors and patients.

The reality is that medical malpractice lawsuits have been on the decline for many years. In addition, those that are taken to trial have a very low success rate. There simply is no problem with runaway medical malpractice jury verdicts in the U.S. The threat of frivolous medical malpractice lawsuits is pure myth.

On the other hand, there is a very real problem with medical malpractice. It is estimated that up to 98,000 patients die each year from medical malpractice. That is almost twice the number of U.S. soldier deaths during the Vietnam War. There are countless others who survive medical malpractice with horrible and permanent injuries.

One such instance was reported by the Texas Tribune where Emergency Room physicians and staff failed to treat a woman for her very well documented and extremely serious vascular clotting problem. The woman was sent home with a diagnosis of bilateral leg pain. Due to the failure to treat the formerly diagnosed problems, the woman lost both her legs.

In addition to very low caps on medical malpractice claims, Texas has seen fit to give immunity against medical malpractice claims to Emergency Room doctors except in cases of "willful and wanton" behavior. In other words, a patient must basically prove intentional conduct. This is an impossible standard making it near impossible now for patients to recover for what amounts to gross negligence on the part of emergency room doctors.

The potential problem is made most evident in a horribly tragic case reported last week by Fox 40 in Sacramento. In that case, the parents of a two year old girl took her to a Sacramento Emergency Room for treatment for a persistent fever, skin discoloration and weakness. The parents waited 5 hours in the Emergency Room begging and pleading with doctors to see their little girl as her condition deteriorated before their eyes. Their pleas were ignored. As a result, streptococcus A bacteria ravaged her body necessitating the amputation of both feet, her left hand and part of her right hand. Streptococcus A is both common and easily treatable. This tragedy could have been avoided with even slight attention to the little girl or her parents.

Anyone who has ever been to an Emergency Room will understand the implications of providing immunity to Emergency Room doctors. There is the common cry that medical malpractice causes doctors to undertake unnecessary and expensive testing to protect against lawsuits. Both these cases illustrate the opposite. In each case, a little routine testing and attention would have saved these patients from amputations. Now states, Texas in particular, are moving toward a model where there is no pressure at all on doctors to behave professionally and competently leaving all of us at risk each time we seek medical attention.

Voters should keep this reality in mind as cynical and opportunistic politicians seek to gain advantage by touting medical malpractice reform. Keep in mind the two year old girl who now faces a life as a quadruple amputee. Perhaps this is not enough so consider yourself or your family in need of urgent medical services at the ER and whether you believe it is prudent to have a system where doctors and hospitals are not held accountable for their actions.

Then ask yourself who the caps and immunity are meant to serve? It is certainly not the taxpaying public who will ultimately bear the costs of caring for those injured by medical malpractice through Medicare, Medicaid, Social Security Disability and other programs while those truly responsible get a pass.

Collins & Collins, P.C.
Albuquerque Attorneys

The Food and Drug Administration has unleashed a new tool for ensuring the regulation of foods and drugs. The FDA has begun using the "Park Doctrine" for the imposition of criminal sanctions against pharmaceutical companies for violations of FDA regulations.

The FDA is targeting the illegal promotion of products for unapproved uses. The practice is known as off-label marketing and is fairly widespread. The FDA has brought back the Park Doctrine after years of dormancy with the realization that civil penalties, no matter how steep, seem to have no deterrent effect on the practice.

The 1970's Supreme Court case of United States v. Park ruled that company executives may be held criminally liable for willful violations of FDA regulations. The criminal penalties typically include fines. However, the FDA has expressed the intention to also seek jail time for those executives responsible for the illegal acts.

The FDA recognizes that the profit motive overcomes the threat of fines, whether criminal or civil. The threat of actual prison time is hoped to be more of a deterrent. Off-label marketing is clearly profit driven and until the profit equation is tipped in favor of public safety, the practice will continue.

These practices are both widespread and widely accepted by pharmaceutical companies and doctors alike. There are numerous ongoing lawsuits, criminal cases and criminal investigations related to these practices. It remains to be seen whether the FDA will hold true to its threat of jail time for guilty executives. It also remains to be seen whether even a threat of a little jail time will tip the profit loss calculation sufficiently for these folks to stop skirting the law.

These cases are interesting for a number of reasons. First and foremost these practices risk the health and safety of patients. Related to this is the fact that both medical industry and the pharmaceutical industry are among the strongest proponents of caps on personal liability awards. They argue that it is trial lawyers that harm the public and threaten public health.

Even President Obama has jumped on the Tort Reform bandwagon suggesting support for medical malpractice caps. There is no disputing that medical malpractice is on the rise, while actual successful medical malpractice claims are on the decline. Neither is there a dispute that wrongful prescription of drugs for financial gain is commonplace. Finally, there is absolutely no disputing that medical malpractice and pharmaceutical company off-label marketing harm the public. So why the continued calls for personal injury liability caps?

Let's start over. It has become a widespread practice of pharmaceutical companies to actively market through financial incentives for cooperating doctors the use of their drugs beyond their FDA approved uses. The practice is called off-label marketing...

Collins & Collins, P.C.
Albuquerque Attorneys

Nursing homes are big business. With big business comes big profits. To maximize these profits, it seems that nursing home companies will find every possible opportunity to cut costs. There are many ways to cut costs in a business. Unfortunately, cost cutting is rarely consistent with good nursing home care.

In a nursing home, among the best available options is cutting staff. For profit nursing homes carry staff at much reduced levels compared to non-profit nursing homes. In fact, it is estimated that for profit nursing home have an average of 32% fewer nurses that non-profit nursing homes.

It seems the best way to reduce nursing home staff is to reduce the care necessary for nursing home residents. If the residents are easy to manage, there is much less effort required on the part of the staff. More compliant residents means fewer staff.

As it turns out, the best way to achieve compliance is by drugging the resident. The drugging of nursing home residents for purposes of management has been termed chemical restraint. In other words, if they don't leave their rooms, they can't give a staff much trouble.

Numerous studies have been conducted finding that as high as 80% of patients are placed on psychoactive drugs. In a Florida study, 71% of new patients were placed on psychoactive drugs within 3 months of admission. Most had no prior psychiatric diagnosis prior to admission to the nursing home. In many cases both in Florida and beyond, patients are placed on multiple drugs, some with dangerous interactions.

In at least one nursing home, the so-called psychiatric condition for which the drugs were necessary was complaints about the resident's care. In many cases, the drugs are given without the prescription of a physician. And when the resident refuses the medication, the staff will force the resident to take it.

One might ask, other than the unethical and sometimes forced medication of residents for purposes of maximizing profits, how are the for profit nursing home companies doing otherwise in terms of patient care? Not so good as it turns out. For profit nursing home facilities have almost 50% greater deficiencies in care than do their non-profit counterparts. Many move in and out of compliance, correcting problems long enough to avoid fines only to have the problems quickly resurface.

With the privatization of nursing homes and the increased emphasis on profits, cases of "immediate jeopardy" where violations were likely to cause serious injury or death rose by 22%. Naturally, among the strongest proponents of tort reform is the nursing home industry. The typical argument is that profit motives will increase the standard of care weeding out the bad actors through competitive market forces.

These arguments might carry more weight if the standard of care were not in free fall as opportunistic firms enter the industry with the expectation of higher and higher profits from one year to the next and one patient to the next. There are many good nursing home facilities. There are many that truly care for the welfare of their patients. These are not the ones that need protection from medical malpractice caps. It is the egregious offenders that need those protections and it is those offenders to whom we can least afford to provide them.

Collins & Collins, P.C.
Albuquerque Attorneys

It seems that caps on medical malpractice claims are used for political capital by every stripe of politician. Most every political campaign will involve a call for medical malpractice caps even if only by token gesture. Even President Obama threw in a call for caps almost as an obligatory gesture to the crowd during his State of the Union speech. Naturally, everyone cheered enthusiastically.

It is unclear what they are cheering about. The cheering is particularly perplexing coming from the Tea Party. The fact is that medical malpractice caps, or caps on any personal injury claim, shifts the costs of negligence and wrongdoing to the taxpayer from the doctor, hospital, and most importantly the insurance company. This is of course by design.

Hot Coffee, the movie is premiering at Sundance Film Festival. The movie documents the gross mischaracterization of the McDonald's hot coffee case by the U.S. Chamber of Commerce and the Tort Reform movement to basically deny normal folks from access to the courts. It does not stop there, it documents the costs of Tort Reform to taxpayers with an emphasis on medical malpractice liability caps.

The movie documents one particularly sad case of gross medical malpractice that led to cerebral palsy of a newborn twin, Colin Gourley. The movie documents the devastating effect of the malpractice on Colin, his twin brother Connor, and the family. Though some in the political arena are not particularly empathetic toward the suffering of others, all those calling for deficit reduction might at least want to take note of the costs to taxpayers associated with the medical malpractice caps that led to an 80% reduction of the jury verdict for Colin.

It was estimated at trial that Colin's lifetime medical expenses for his cerebral palsy would be $12.4 million. The jury awarded $5.6 million to cover Colin's medical expenses. The Appellate Court knocked the verdict down to $1.2 million which included other damages as well. This leaves a gap of millions for the lifetime care of Colin.

One might ask, what about private health insurance? The family had health insurance. Mr. Gourley lost his job and his medical insurance. Once he gained employment again, he was able to apply for medical insurance for his family. Naturally, the insurance company denied coverage to Colin due to his preexisting injuries.

In sum, the insurance industry escapes financial responsibility for medical malpractice for which they charge astronomical premiums. Then at the other end, the industry escapes coverage for Colin through private medical insurance. The end result is that Colin will be a lifetime beneficiary of Medicaid and the insurance industry has effectively shifted their financial obligations, but not their profits, to the public. And Congress and the President cheer approvingly.

For more information on Hot Coffee, go to Democracy Now, where there is very good reporting on the movie as well as the Medical Malpractice Myth. Make no mistake, we have been duped by the Chamber of Commerce and the Insurance Industry. Judge for yourself once you know the true facts.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New York Times artilce illustrates the predatory nature of personal injury lawsuit funding companies. The article cites instances where plaintiffs ultimately turned over almost their entire settlement or judgment to the lawsuit lenders.

The lawsuit lenders like to call themselves investors. In fact, they are highly predatory lenders. They argue that lawsuit lending is more akin to venture capital than lending. They justify interest rates of up to 100% a year on the rationale that they are at risk of not getting paid back at all.

In reality, most of these companies screen their cases with extreme care. The Times article suggested that the companies will refuse loans on 70% of the applications and then loaned on 10 to 20 percent of the expected recovery. In short, they are looking for slam dunk settlement cases. And, in fact, it is not terribly difficult to evaluate the likelihood of recovery on most cases.

If nothing else, these companies could use programs like the insurance industry's Colossus software for evaluating claims. This software is used by a large number of auto insurance companies. Upon entry of the specifics of an auto accident, the software spits out a settlement range. To the chagrin of many injured persons and their lawyers, there are some insurance companies that will not budge off these very conservative settlement value estimates.

Even without a program like Colossus, cases with high and/or certain settlement value are not hard to spot in most routine personal injury cases. There are others such as medical malpractice and products liability that are more difficult to evaluate and fairly risky to undertake. However, if these companies are truly screening 80% of the cases from eligibility, then it would seem that they are instead focusing on the sure cases with very little risk of loss.

Yet they continue to charge rates up to 100% annual interest. To further illustrate the point that these are low risk, extremely high interest predatory loans, the Times cited one industry leader who stated, "We don't want judges to shine a light on us." To avoid scrutiny from judges who often will refuse to enforce these predatory loans, many of the lenders will loan only on those cases that have a high probability of pre-trial settlement. In others words, they make only very low risk loans or "investment."

What does this mean for you and your personal injury claims? It means that if the company is willing to lend to you, by definition, you should not take their loan. The fact that they have approved the loan suggests that your case has a very good chance of pre-trial settlement.

If you are truly desperate for funds, then you might consider lowering your settlement demand to facilitate a more rapid settlement. This would be a more prudent and far less financially detrimental route than ultimately turning over your settlement to a lawsuit lender.

Collins & Collins, P.C.
Albuquerque Attorneys

The statute of limitations in most personal injury cases is 3 years from the date of the incident that caused the injuries. In cases against state, county and local governmental entities, the statute of limitations is only 2 years.

Failure to file a suit within the statute of limitations bars a lawsuit completely. In other words, if you do not file within the statutory period, then you cannot file the lawsuit at all. The statute of limitations is harsh and a personal injury plaintiff should not flirt with these deadlines.

There are some rare cases where the statute of limitations may be extended or tolled. These are extremely rare and an injured plaintiff would be well advised not to place any reliance on these exceptions to the statutory deadlines.

Perhaps the most common situation where the statute of limitations would be extended is in cases where the injured party is unaware of the injuries. This often arises in cases of medical negligence. After all, for instance, the patient may not know of a surgical sponge left inside them for years following the surgery.

An injured person may also be unaware of his or her injuries in cases of product defects. Often these too are associated with a medical malpractice claim. The best example currently in the news are the hip replacement recalls from Depuy . There are many other surgical products that have caused injuries to patients which were apparent only years after the surgery.

The same type arguments hold for numerous pharmaceuticals both past and present that have been found to cause serious personal injury to patients. There are currently recalls with either pending or possible lawsuits involving Yaz, Nuvaring, Accutane, Darvon, Darvocet, Gardasil, Fosamax, and Paxil to name only a few. For each, patients may have taken the drugs for years before realizing the harm that the drugs caused. Some may have ceased using the medications long before knowing of their injuries.

There are certainly other situations where an injured party may not be aware of his or her injuries until months or years after the incident. Keep in mind, however, that ignorance of the injuries alone is not sufficient to toll the statute of limitations. If the injured person should have known of the injuries, then there will be no tolling of the statute of limitations. By way of example, this is true in New Mexico even where there are differing medical opinions regarding the source of the injuries.

The bottom line is the statute of limitations is real and it is rigid. There are very few exceptions. It would be exceedingly unwise to ignore an injury or illness that may have been causes by medical negligence, a product defect or any other cause. It is entirely possible that ignorance of the cause may not be grounds for tolling the statute of limitations.

If you are injured or sick and you believe it was caused by the products or actions of another, then seek a medical opinion immediately. If there is more than one possible cause, then it may unfortunately be necessary to sue them all and sort out the causation through litigation.

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