New Mexico Injury Attorney Blog

Slip and fall accidents are fairly common. Those injured in a slip and fall accident often have unrealistic expectations of financial recovery and often assume that there is liability simply by virtue of the accident. In doing so, they may fail to recognize their shared responsibility for the accident and the injuries. Premises liability is not absolute. New Mexico follows principles of comparative negligence which may and often does greatly diminish or destroy a slip and fall claim.

In New Mexico, every person has a duty to exercise reasonable care to protect themselves from harm. This includes protecting themselves from slip and fall accidents on the premises of another, whether on business or personal property. As a result, individuals are imputed knowledge of obvious dangers and failure to avoid those dangers may be considered the sole or partial cause of the slip and fall accident.

This issue comes up frequently in cases of ice and snow. Falling on fresh ice or snow is a far different matter than falling on ice that is unexpected and not apparent to the eye. For example, falling in a parking lot on ice immediately following a snow storm will likely be found to be the sole responsibility of the injured person due to the assumption of risk in knowingly walking on ice and snow. In addition, property owners will not be held responsible for those conditions that they cannot control. On the other hand, if a person falls several days after a snow storm and the property owner had time to remove the ice and snow and should have known of the danger, then it is far less likely that the injured person would be attributed comparative negligence. In other words, the liability and fault would fall strictly on the property owner.

These principles carry across a wide array of slip and fall accidents. Comparative negligence and the duty of reasonable care will often completely destroy a slip and fall claim. When someone has suffered serious injuries, this is a difficult conversation to have with the injured person. Unfortunately, all accidents are not compensable in personal injury litigation. Sometimes accidents just happen and there is no liability or fault on which to bring a claim.

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

A recent incident in Albuquerque points out the dangers of leaving children unattended in cars. The incident involved a bus driver for a non-profit that provides low income child care to Albuquerque residents. The bus driver had made his rounds dropping off kids at their homes. He forgot about two toddlers, ages 7 months and 1 year old, who were lying quietly in their car seats. He finished his rounds, returned the van to Peanut Butter and Jelly Family Services, locked the doors and went home. Fortunately for all, the children suffered only dehydration and diaper rash. The outcome is often times far worse.

Anyone reading about the incident would be very unsympathetic to the bus driver. His negligence is unacceptable. Surprisingly, this behavior is not all that unusual. Many times, adults leave kids in vehicles for convenience. On occasion, as in this case, the behavior is accidental. About the same time the story arose in Albuquerque, several news outlets carried similar stories. CNN carried one that ended tragically. Basically, the mother and father of two young children changed their normal routine for dropping off the kids at daycare. A toddler was placed in the mom's car in the morning. The dad usually dropped the kids at daycare. As in the case of the Albuquerque bus driver, the toddler lied quietly in his cars seat. The mom in the trance of her daily routine went to work, worked all day, went to pick up her son at the daycare, only then to realize what had happened. The child died.

CNN reports during the same story that 37 children die each year as a result of being left in vehicles. There have already been 20 reported cases through June of this year. It is uncommon that a child would be left in a car all day as occurred in the CNN report. Instead, these tragedies typically happen very quickly. Hyperthermia (heat stroke) can occur rapidly in children in an unattended vehicle. An unattended car can have a temperature 40 degrees higher than the heat outside. In the intense sun of New Mexico, the variance can be much greater. Simple math says it all even in moderate weather. Children in particular are not equipped to endure such heat. Exposure to that kind of heat even briefly can be catastrophic.

Though, the incident with the Albuquerque bus driver ended far better than it might have, the driver is facing two counts of felony child abuse. He, the children, and their parents are lucky the charges are not more serious. More often than not, these incidents lead to death. There is simply no good reason for leaving a child unattended in a vehicle no matter what the circumstances.

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

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

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

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

The rule is reflected in New Mexico Uniform Jury Instruction 13-1802 where it states in part:

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

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

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

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

The Albuquerque Journal recently reported on a surgical checklist proposed by the World Health Organization to reduce operating room errors. The contents on the list are pretty simple including pre-surgical procedures for verifying the surgical procedure with the surgical team, verifying the identity of the patient before beginning surgery, marking the surgical site with a pen or marker, verifying patient allergies, verifying that all necessary equipment is in the operating room and working properly, verifying all necessary x-rays and other images are in the operating room and at the end of surgery, making sure that all equipment and supplies are accounted for to avoid the embarrassing and often very serious oversight of leaving stuff inside the patient.

The New England Journal of Medicine reported that the checklist was effective in the 8 cities around the world that utilized the list and in those hospitals using the list, post-operative complications, including deaths, fell by 36 percent. The World Health Organization found that inpatient deaths following major operations fell by more than 40%. The Albuquerque Journal reported that Presbyterian Kaseman Hospital alone expects to save 162 lives this year using a version of the checklist.

Oddly, the authors of the New England Journal of Medicine study indicated "Whereas the evidence of improvement in surgical outcomes is substantial and robust, the exact mechanism of improvement is less clear and most likely multifactorial." Most people would go the other direction asking why in the world there has been no such checklist in the past. Most people, including those patients and their families that undergo 234 million surgical procedures each year around the world, probably assumed that there was and always has been such a checklist. People make checklists when they go to the grocery store. Is it really too much to ask that surgical teams exercise the same level of planning?

This report is disturbing on many levels. Is it really to be viewed as a medical breakthrough of sorts that surgical staff would begin to verify the patient, procedure and surgical site prior to operating? It is remarkable that Presbyterian Kaseman, according the Albuquerque Journal, expects to save 162 lives this year through implementation of the checklist. Most would consider failure to perform these basic tasks to be negligent, arguably grossly negligent. And one would be justified in asking, "If 162 lives can be saved through these simple procedures this year, what about those 162 lives lost last year and the year before as result of the failure to implement these seemingly obvious surgical procedures?"

These reports come out in the midst of ongoing Tort Reform battles to limit or bar medical malpractice lawsuits, continued movement for limits on medical malpractice claims, and generally growing and expensive obstacles to such claims by injured patients or their survivors. When hearing this report, the rather unbelievable assertion by the Institute of Medicine that up to 98,000 patients die each year in the United States as a result of medical negligence makes perfect sense. It would also tend to make any reasonable patient nervous about any surgical procedure knowing that very few hospitals have implemented the checklist and that Tort Reformers and medical industry lobbyist are hard at work to limit claims by a patient in the event that he or she is among that 98,000 next year.

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

There was a recent New Jersey jury verdict of $18.5 million for a birth injury. The medical malpractice award was reported in The Star Ledger. Essentially, the jury issued the verdict after finding that a delay in a c-section delivery resulted in the child's cerebral palsy.

It is not uncommon to see very large verdicts in birth injury cases. The damages in these cases are significant. The child and the family could face a lifetime of medical expenses, assisted living, rehabilitation and so on. This is not cheap. In addition, the child will one day become an adult with absolutely no possibility of earning income. A lifetime of lost earnings will typically make up a big part of the damages award. Then of course there are damages for pain and suffering. Despite what many believe, these are often a small percentage of the overall award.

Again, the verdict itself is not that surprising in light of the damages. In reading the comments on the article, I was struck by the success of the tort reform movement in programming the public's response. In fact, most jurors come to the jury box with these same prejudices including a strong bias toward protecting the medical profession.

One comment suggested that "Life is never fair. Nothing guarantees a perfect life or entrance into it." Another suggested that these awards are the reason for high health insurance costs. Another suggested that patients buy their own insurance to protect against medical malpractice. Even the one that agreed with the verdict expressed horror that the attorney would be paid a percentage of the recovery.

Yes, life is not fair. But life should not be made dangerous by the acts of others, especially those entrusted with your care. And those that do cause harm should bear responsibility for their actions. Lawsuits are not the reason insurance is so high, insurance companies are the reason insurance is so high. The medical malpractice crisis is a myth. Medical malpractice claims have dropped dramatically over the last 10 years. A study by the Institute of Medicine, a part of the National Academy of Sciences, estimates that up to 98,000 people die each year as a result of medical negligence. The fact is far fewer lawsuits are brought than realistically should be to protect the public against these risks.

Numerous health insurance companies made record or near record profits in 2009. At the same time, many are raising premiums across the board. Think about that. They made record profits during the worst recession since the Great Depression and yet they are still raising rates. Is it really lawsuits that are driving insurance costs? Could it not be corporate greed?

And what about those greedy lawyers? Look again at the actual numbers on medical malpractice claims. There are very few medical malpractice lawsuits being filed just in relation to wrongful deaths associated with medical negligence. This does not even begin to address medical negligence that results in non-fatal injuries and illness, often permanent, caused by medical negligence. The fact is these are extremely hard cases for attorneys. They are extremely expensive to litigate. This is true even in clear cases of negligence where it is often the policy of insurance companies to deny every claim. In addition, these cases are lost at trial more often than they are won due to the benefit of the doubt given doctors. Attorneys that take these cases take on enormous risks. Without the fee in the end, nobody would take these cases. And injured patients and society would be forced to bear the costs of these errors.

To some, as indicated by the comments to the report of the verdict, it is far better for society to allow insurance companies to charge outrageous premiums to protect against a fictitious wave of medical malpractice lawsuits while having the patient bear all the risks. It is far better still that society and taxpayers should bear the costs of a lifetime of care for injured patients through Medicaid, Medicare and Social Security than for insurance companies to cover the losses for which they are paid to cover. The insurance companies after all are the true victims here. We should protect their margins.

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

The New Mexico Court of Appeals case, Chairez v. James Hamilton Construction Co., discussed in my prior post also addressed issues related to exclusive remedy of worker's compensation for employees injured on the job. Most states have statutes similar to New Mexico limiting an injured worker's claims against a negligent employer to worker's compensation. As was the case in Chairez, there are exceptions for injuries caused as the result of the negligence of a third party.

In Chairez, the deceased plaintiff's estate (plaintiff) sued the manufacturer for a defective rock crusher under product liability law. The defendant's motion for summary judgment due to modification of the equipment by the plaintiff's employer was denied. It was clear that the employer's modification of the rock crusher by removing a critical safety feature was negligent and contributed to the death of the plaintiff.

Due to New Mexico's exclusive worker's compensation remedy against the employer, plaintiff was unable to bring a claim against the employer despite the employer's obvious negligence, and arguable recklessness. The court cited the seminal 2001 New Mexico Supreme Court case on the issue of Delgado v. Phelps Dodge Chino in support of its discussion.

The Court laid out the requirements set forth in Delgado for the waiver of worker's compensation protection by an employer. Delgado holds that an employee can bring an action against the employer for work related injuries in very rare situations. The court in Chairez stated the Delgado factors as; "(1) he or she can establish that the employer engaged in an intentional act or omission without just cause that is reasonably expected to result in the injury to the worker; (2) the employer expected the intentional act or omission to result in the injury; and (3) the intentional act or omission proximately caused the injury."

Thus, the hurdle for getting past worker's compensation exclusivity is very high. In Chairez, the plaintiff was unable to clear this hurdle despite the obvious negligence of the employer in removing the safety features from the rock crusher.

Unfortunately, New Mexico like most states, provides far greater protection for the employer than the injured employee. The statute is drafted as if it is meant to protect employees. In reality, it is there to protect employers. The result is that countless workers each year in New Mexico and in other states are gravely injured or killed by the negligence and/or recklessness of their employers. The root of the behavior is often economic as in Chairez where the safety mechanism was removed so that the rock crusher could be cleaned faster to minimize down time.

Worse still, workers or their surviving families receive only nominal awards from for their damages. They receive pennies on the dollar for their lost wages which may be permanent and total. They receive only trivial awards for the rather cynically and miserly computation of their impairment ratings for permanent injuries. They do receive medical costs, past and future, associated with the injury. If the insurance companies can find a way around this, they do. The injured employee receives no other compensation for pain and suffering, loss of consortium, loss of enjoyment of life, loss of household services or any other losses.

In the end, society pays through Social Security, Medicaid, Medicare and other governmental programs. Thus, taxpayers are left to cover losses that should rightfully be paid by the businesses that caused them.

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

A report by Public Citizen debunks the myth of frivolous medical malpractice claims. In fact, the report indicates that medical malpractice payments are at record lows.

The report provides some interesting statistics that the tort reform movement neglects to mention in their constant ranting about trial lawyers preying on the medical community. The report states that there are a least 3 deaths caused by medical errors for every single medical malpractice payment of any kind.

These statistics make clear that medical malpractice awards are actually rare, and perhaps more rare than can be justified by public safety. Public Citizen reviewed the National Practitioner Data Bank which has been tracking this data since 1990. The group found that there were only 11,037 payments in 2008 nationally. This number was right at 31% lower than the average number of payments in all previous years.

These numbers reflect 13.5 medical malpractice payments per million physicians in 2006 which apparently is the last available data for the number of practicing physicians U.S. The costs of medical malpractice, including insurance premiums, is one fifth of one percent of all health care costs.

In fact, if anything, there are far fewer lawsuits than are justified by actual medical negligence. The Public Citizen report cites a 1999 study entitled "To Err Is Human" from the Institute of Medicine's (IOM). The IOM study found that between 44,000 and 98,000 Americans die each year due to avoidable medical errors. In 1999, fewer than 15,000 people total, including non-fatal incidents, received any compensation at all for their injuries. In 2008, that number was just over 11,000.

These numbers clearly illustrate the falsity of tort reform arguments. Medical malpractice is not a burden on health care. In fact, the vast majority of those injured by medical malpractice receive no compensation of any kind. Likewise, the doctors and hospitals responsible for those injuries escape the burden of their harmful behavior.

Instead, the financial burden is shifted from the responsible medical provider to the innocent patient who may have suffered permanent injuries or death. The burden is shifted to the patient and his or her family who may have suffered catastrophic damages in the form of permanent impairment or wrongful death along with the resulting loss of income to the family. In turn, this burden is most often shifted to society as a whole when future medical care, which may last a lifetime, must be provided by Medicaid or Medicare. It is shifted further to society when the injured person is placed on Social Security Disability, or the family is left destitute in the case of wrongful death.

The title of the IOM report sums it up "To Err is Human." Doctors, as do we all, do make mistakes. The rest of us pay for our mistakes. Why is the medical profession exempt? What about going to medical school justifies that doctors, who have our health and lives in their hands, should be immune from responsibility for their mistakes?

The professions should be held to a higher standard than the general public, not a lower standard. Acceptance of responsibility for harm done to patients is fundamental to professionalism. The absence of responsibility is a disservice to the public, and a disservice to the vast majority of medical professionals that do perform their jobs professionally and competently.

Should any industry that causes 44,000 to 98,000 deaths per year through the negligence or incompetence of its some of its members be allowed to cry injustice because their insurance premiums have gone up slightly? Perhaps they should be arguing against their insurance companies and not against the compensation of injured patients.

Birth injuries often have permanent and catastrophic consequences for the injured baby and the family. Birth injuries are not always preventable. There are birth injuries that simply cannot be avoided. On the other hand, birth injuries on many occasions result from medical negligence. In these cases, the child and the family are entitled to the recovery of damages caused by the medical malpractice.

Medical malpractice claims are generally very difficult to bring. There is a strong presumption that the doctor or doctors acted in a professional manner. It must be proven that the doctors' care fell below, and generally well below, the established standard of care in the medical community. The doctor is basically held only to a standard of care that could be reasonably expected under the circumstances.

Proving a doctor negligent is much easier said than done. In addition, doctors and hospitals are often very reluctant to admit medical negligence. As a result, the injured plaintiff must typically obtain an expert medical opinion of his or her establishing the medical negligence. A medical malpractice claim can be long, difficult, emotionally stressful and financially expensive, and in the end juries are often extremely sympathetic to doctors giving them every benefit of the doubt.

This makes verdicts like two recent medical malpractice birth injury cases in New York very remarkable. Both cases, as is often the case in birth injury cases, involved oxygen deprivation at delivery. One case involved a 25 year old plaintiff, Tiffany Busone, who suffered cerebral palsy and spastic quadriplegia due to oxygen deprivation. In addition, the doctors failed to resuscitate her or to recognize that the umbilical cord was suffocating her aggravating her injuries. The second case also involved a 3 year old plaintiff, Diego Baizan, who suffered oxygen deprivation during delivery with the baby in oxygen distress during delivery for over an hour before the doctors ordered a Caesarian delivery. Again, the oxygen deprivation caused cerebral palsy which is common result of this type of birth injury.

In both these cases, the plaintiffs were awarded very large jury verdicts. Tiffany Busone was awarded $43.5 million while Diego Baizan old was awarded $77 million. In the case of Diego Baizan the $77 million verdict was against the hospital who unlike the doctor in the case refused to settle pretrial. Ms. Busone suffered primarily physical injuries and was functioning at a high intellectual level. Diego Baizan suffered severe brain damage. Each will require a lifetime of medical care and treatment for their injuries.

These cases bring up a couple of interesting legal points. The first regards the statute of limitations. In New Mexico, the statute of limitations is only 3 years for these types of claims. In cases of injuries to children, the statute is tolled until the child reaches 18 so that the suit typically can be brought within one year of the child's 18th birthday. A similar tolling statute was clearly in place in New York.

In addition, the damages awards in each bring up interesting points regarding the calculation of damages. An injured person can recover for a host of damages including permanent injuries, pain and suffering, past and future medical damages, and future lost wages. In cases of serious physical injuries such as cerebral palsy and brain injuries, these damages can be enormous due to the future medical care which might include around the clock nursing care. In addition, these injuries bring with them huge potential lost earnings claims. Even at minimum wages, a lifetime of lost earnings can add up to some huge economic damage awards.

These cases illustrate the preposterous nature of all the tort reform debate and the constant thrashing that opportunistic politicians give trial attorneys. Put yourself in the shoes of these two plaintiffs, and their families, and then argue that suits against doctors and hospitals should be stopped to protect the medical profession. The public, injured patients, and the medical profession itself are all harmed when medical negligence is allowed to go unchecked. In addition, without medical malpractice claims, the public, rather than the responsible medical providers, is left to carry the burden of caring for these unfortunate victims of medical malpractice through Medicaid and Medicare.

www.ColllinsAttorneys.com

Construction accidents can be devastating. They are generally far more serious than other workplace injuries. Often times, unlike run of the mill workplace accidents, construction accidents result in permanent injuries and even death.

Workers compensation laws, including those in New Mexico, presumably drafted to protect workers instead generally place a grossly inadequate cap on the amount and types of damages that can be recovered for a workplace accident. The statutes are really for the protection of the employer, not for the employee. Workers compensation statutes protect the employer from any claims of negligence though the cause of workplace accidents is often the result of unsafe work environments, inadequate training, unsafe and unqualified co-workers, dangerous and poorly maintained equipment and a hosts of other preventable causes. In essence, the employer is shielded from any liability for the worker's injuries and damages except in the most extreme cases of recklessness.

In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney's ability to tie liability to the employer's parent company escaping the limitations of the worker's compensation statutes.

Because the deceased plaintiff's estate was barred from suing his employer, the attorney ingeniously argued that the defendant's (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff's death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

The plaintiff's attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

www.CollinsAttorneys.com

A settlement of $20 million was reached in March 2009 in the a lawsuit against Burger King for the devastating brain injuries suffered by a 12 year old boy in a 2005 fall from a play structure inside a Burger King facility.

The boy was playing with his 5 year old sister on the play equipment when he fell hitting his head on the tile floor. There was no protective matting below the structure to protect against such injuries. The play structure had monkey bars and a fireman's pole clearing presenting risks of children falling from the structure.

The jury found that the restaurant should have provided some kind of protective covering on the floor rather than the hard tile on which the child fell. In addition, there were no warning signs around the equipment as present in other such facilities. Finally, there had been at least one other fall at the facility showing that the accident and injuries were foreseeable and preventable.

The 12 year old boy suffered severe traumatic brain injury. The injuries are permanent. The child will require a life-time of medical and rehabilitative services. The jury obviously took these permanent injuries and future medical expenses into account in the enormous $20 million verdict.

It is well established under the law of premises liability and negligence that playgrounds must be made safe for children. Parents trust the safety of play equipment every day. The duty to maintain a safe play environment as well as liability and fault for any injuries suffered by the failure to keep this duty lie with the provider of the equipment. This includes restaurants, retail establishments, public playgrounds, and other facilities that offer the use of play equipment to children. In addition to liability for failure to maintain a safe environment for play equipment as was established in this case, manufacturers of play equipment are held to a very high standard of care under products liability law.

If your child is seriously injured in a playground accident, liability for damages may be spread across a number of different parties. It is important to identify all of these the parties from the beginning to avoid possible unexpected apportionment of liability at trial after the statute of limitations has long passed. In case of apportionment of liability to other parties, full recovery for all damages may not be possible if those other parties were not named in the lawsuit.

www.CollinsAttorneys.com

Following a $16 million verdict, Ford Motor Company settles with a woman left paralyzed in an auto accident. The settlement came as the jury considered additional punitive damages against the manufacturer for design defects in the rear seat latch on its Explorer model.

The $16 million verdict came despite the fact that the cause of the accident was the driver of another vehicle that struck the Ford Explorer in which Lynn Wheeler was a passenger in the back seat. Ms. Wheeler was sitting in the center of the back seat between her two grandchildren as the family was en route to church on Christmas Day in 2005. Upon collision with the other vehicle, the rear seat latch failed folding on Ms. Wheeler and slamming her forward into the front console.

Ms. Wheeler suffered spinal cord damage and permanent paralysis from the neck down. The Georgia jury awarded a total of $17.7 million in damages. The jury found apportioned the liability and fault between the driver of the other vehicle that caused the accident holding him liable for $1.2 million for his negligence and Ford liable for the remainder on the products liability claim.

The jury was considering additional punitive damages against Ford at the time of the settlement. The punitive damages could have enormous. Punitive damages typically are based in part on the revenue of the defendant. Punitive damages function to deter future conduct. In this case, it appears based upon the evidence presented by the plaintiff's attorney, that Ford had known about the dangers of the lap only seatbelts for more than 30 years based upon extensive crash testing and research. The knowledge was well documented in Ford's own safety documentation and internal memos.

Despite the obvious dangers presented by the defective design, Ford failed to correct the problem continuing to install the lap belts rather than the safer shoulder belts. As a result of Ford's knowledge of the dangers of its defective design and its deliberate failure to correct the problem, it is likely that the jury would have awarded significant punitive damages. Due to the settlement, Ford will avoid a possibly enormous punitive damages award.

Product liability cases such as these are extremely important for the public safety. Consumers trust their safety and the safety of their families to manufacturers such as Ford. Without product liability suits such as this one, manufacturers would have little incentive to design and manufacture safer products. Indeed, as in this case, the motivation flows in the exact opposite direction as manufacturers would ignore their own safety research and findings in an effort to keep production costs down. It is important that the costs savings associated with cutting costs be weighed heavily against the costs of these suits in the event of their deliberate indifference to the safety of their consumers. Unfortunately, profit alone drives manufacturers such as Ford and the threat of lawsuits if nothing else will hopefully drive them toward more responsible design decisions.

www.CollinsAttorneys.com

A jury awarded a family $7.4 million for the brain damage that their child suffered as a result of an untreated infection at birth. The child, Paris Campen, suffered brain damage when the neonatal intensive care unit at Cedars-Sinai Medical Center failed to properly treat the newborn's infection.

As a result of the medical malpractice of the medical staff in failing to treat the birth related infection, the child developed meningitis which caused the child permanent brain damage. The child will have a permanent shunt in her brain to prevent excess fluid and further brain damage. In addition, she will undergo a lifetime of behavioral and physical therapy.

The child's mother, an emergency room doctor at UCLA Medical Center, had raised the issue of infection with the doctors at Cedars Sinai. They ignored her. This kind of arrogance is often at the root of medical malpractice and medical negligence. Doctors often ignore their staff members and nurses, who many times due to close contact with the patient are more knowledgeable of the patient's needs than the doctor. The arrogance in this case is even more remarkable in the doctors' refusal to listen to the child's own mother who happened also to be a doctor.

Meningitis in newborns is extremely serious. In addition, this type of birth injury is not so uncommon that it should not be checked if even remotely possible. Immediate diagnosis and treatment is essential to prevent, hearing loss, learning disabilities, and in this case brain damage. Failure to properly diagnose and treat meningitis in newborns is a significant departure from the standard of care expected in the medical profession.

Though this case occurred in California, these same issues arise in Albuquerque and throughout the state of New Mexico. Medical malpractice lawsuits in New Mexico are challenging to say the least. Doctors are given every benefit of the doubt under the law. In the case of public facilities, there are other layers of protection include Tort Claims Notice Requirements and Tort Claims limits. Moreover, doctors are highly respected throughout society so that juries are reluctant to find fault with physicians. The same type of arrogance that drives doctors to ignore their staff, nurses, mothers and fellow doctors also results many times of an absolute denial of responsibility even in clear cases of negligence. Couple all this with all the nonsense regarding tort reform, and the constant barrage of misinformation regarding the strain that these types of cases place on the medical profession, and medical malpractice claims of any kind face an uphill battle.

However, in cases like this where a child is permanently harmed through the gross negligence of a medical staff explained only by the refusal of the doctors to acknowledge the concerns of a mother and fellow medical professional, the jury obviously felt the doctors' care fell so far below the medical industry standard care that a strong message had to be sent.

A verdict, even a $7.4 million verdict will never fully compensate a child and a family burdened with a lifetime of suffering. However, these verdicts serve society in forcing a medical profession buttressed by the support of tort reformers and opportunistic politicians to behave responsibly. The medical profession must recognize that with its great privilege comes great responsibility, perhaps at least in this case, the greatest responsibility of all which is to protect defenseless newborns and their families from preventable harm.

www.CollinsAttorneys.com

The family of a worker killed in a construction accident in Texas reached a settlement with the contractor and subcontractors in a wrongful death lawsuit for the seemingly low amount of $440,000.00. The low number probably suggests issues of comparative fault on the part of the deceased worker and his employer.

Luis Lara was a 23 year old construction worker. He was working on a construction job site in Mesquite, Texas, just outside of Dallas, where workers were lifted to upper floors of the job site with a forklift. As he was being lifting in a box by the forklift, the box tipped from the forklift sending him falling 2 stories to the ground where he hit a metal beam. He was pronounced dead at the scene.

The family sued both the contractor and the subcontractors for Mr. Lara's wrongful death. It was alleged that the contractor CME Builders and the subcontractors, Frontier Framing and Associated Truss & Lumber, used the forklift in a negligent manner contrary to the equipment's instructions as well as construction industry safety regulations. Past negligence and OSHA citations by Frontier Framing bolstered the claims of negligence against the defendants.

The defendants argued comparative negligence on the part of Mr. Lara which probably played a role in the relatively low wrongful death award of only $440,000.00. The injuries and damages to Mr. Lara and his family probably far exceeded this amount. Mr. Lara's estate was entitled to recover for the wrongful death itself. The loss of life alone suggests a much higher settlement or jury verdict absent issues of comparative negligence.

In addition, because Mr. Lara was only 23 years old, and had his full work life ahead of him, the lost future earnings could far exceed the amount awarded. In the case of such a young worker killed on the job, the lost earnings over the remaining work life of Mr. Lara would likely exceed the million dollar mark unless he was a low paid laborer with little future earnings potential.

Lost earnings are typically calculated by expert economists that project the worker's remaining life-long earnings based upon his current age, position, past work history, educational level, industry wages and potential earnings along with other considerations to arrive at the estimate of lost future earnings. These numbers can be enormous in the case of young workers, particularly those in high paying fields such as construction.

The relatively low settlement amount suggests that Mr. Lara's earnings were not on the high end of the construction idustry. In addition, the settlement amount suggests a significant level of comparative fault on the part of Mr. Lara. Finally, there were likely other comparative fault issues that arose as a result of worker compensation limits if Mr. Lara's employer was found even partially at fault for his wrongful death due to strict limits on employer liability under workers compensation statutes.

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An Ohio jury awarded an 8 year old and his family the largest medical malpractice award in the state's history. The 8 year old child, Leondo Stanziano, suffers from cerebral palsy as result of the medical malpractice of the hospital where he was born. The jury awarded Leondo and his family $31 million in damages.

During his delivery in December 2000, Leondo was deprived of oxygen for 18 to 20 minutes. The oxygen deprivation caused serious birth injuries including permanent brain damage and cerebral palsy.

Cerebral palsy permanent disability involving movement control and muscle coordination disorders. In addition, it causes seizures, sensory impairments and severe cognitive limitations. It is typically the result of birth injury related brain damage. Leondo will never walk or talk and will require 24 hour care for the remainder of his life.

The lawsuit was filed on behalf of the family and Leondo against the hospital as well as the doctor for a broad range of damages for medical negligent. The suit alleged that the doctor and the hospital knew of the mother's high risk for uterine rupture but failed to properly monitor the delivery. In addition, the suit alleged the labor inducing drug Pitocin was negligently used causing hyper stimulation of the patient's uterus which ultimately did burst. Expert testimony established that the hospital's nursing was negligent in continuing Pitocin despite abnormal contraction patterns throughout labor and delivery causing enormous stress on the uterus and prior birth related incision scars.

The family's expert testified that Leondo's life expectancy would be 70 years. Based upon the 70 year life expectancy, the plaintiff's attorney asked for an award of $2.5 million in future lost earnings and $25.9 million in future health care costs. Remarkably, the defense countered saying Leondo would only live to be 20 due to his injuries suggesting to the jury that Leondo should be awarded only $7000/year for medical care over the remainder of his severely shortened 20 year life span.

Apparently, the jury was not pleased with the callousness of the defense's argument. Nor were they moved by its twisted logic that somehow Leondo should receive far less for his injuries since he would soon be dead anyway as a result of the hospital's negligence. The jury did not buy the hospital's argument that its liability should be reduced in essence because the hospital absurdly argued Leondo had suffered greater harm than claimed by the plaintiff.

Unfortunately, many times the defense will take this position attempting to reduce human loss to a simple calculation of future medical costs and lost earnings. These are calculated just as would be an annuity. Often, this logic will carry the day at trial. They then ironically try to argue for a greatly reduced life span to minimize these damages over the life of the injured person.

The jury in this case clearly looked past the simple mathematical formulas upon which the defense attempted to value Leondo's life, health and future. Clearly, the plaintiff's attorneys kept the focus on the human loss and out of the realm of mathematical annuities where the defense would prefer to keep the focus.

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New Mexico is a comparative negligence state. As a result, it is possible for someone involved in an auto accident to recover damages even if he or she is partially responsible for the accident.

This is in stark contrast to those states that follow contributory negligence rules. Contributory negligence doctrine precludes a driver from recovering anything for his or her injuries for even minor negligence. The contributory negligence model has very harsh and unfair results since minor negligence is present in almost every accident. Contributory negligence doctrine also encourages insurance companies to fight liability even where their driver is clearly responsible for the accident. There is a big payoff for a finding of contributory negligence since it excludes recovery where any contributory negligence is found.

Fortunately, New Mexico follows the much fairer comparative negligence model. Under comparative negligence, the injured party must still prove liability or fault on the part of the other driver. However, some minor negligence will not completely preclude recovery. Instead, the law will apportion fault to the parties. Any damages will be reduced by the percentage of fault attributable to the injured party.

For example, if the injured party proves $10,000 damages and it is show that he or she is 50% responsible for the accident, then the total recovery will be reduced by 50% to $5000. This doesn't seem like much but in cases involving extraordinary damages, the recovery can be quite large even after the reduction for comparative fault. For instance, if the case involves permanent injuries or even death, the damages can be very large so that even with a 50% reduction in damages, the settlement or judgment can be substantial.

A wrongful death action can result in damages well in excess of a million dollars. Depending on the circumstances, the damages can rise to the millions. Under a contributory negligence model, the injured party or the estate would be prevented from recovering any damages at all if there was the presence of any contributory negligence. Under the comparative fault model, the injured party or the estate would recover reduced but still significant damages.

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