New Mexico Injury Attorney Blog

There are many myths surrounding personal injury claims. One persistent myth is the frivolous lawsuit. Related to the frivolous lawsuit myth is a basic misunderstanding of many concerning the ease of obtaining money from insurance companies. In fact, insurance companies are pretty protective of their funds and do not readily part with them.

There are many including a few inexperienced lawyers that believe that insurance companies will cower at the threat of a lawsuit. Based upon this mistaken belief, they believe that throwing out a high dollar demand under the threat of suit on a trivial or even non-existent claim will intimidate the insurance adjuster into settling for more than the case is worth. In fact, nothing could be further from the truth.

Insurance companies get hundreds or thousands of cases every day. Each and every case will go through a standardized valuation process. These processes may differ in varying degrees between different insurance companies but each insurer will have its own valuation process.

The adjuster will first look at liability to determine if its insured is responsible for the accident. In New Mexico it may have to factor in comparative negligence. If the insurer finds that there is no liability or fault on the part of its insured, it is highly unlikely that it will pay out on a claim. Of course, there are those cases with disputed liability and in New Mexico comparative fault where the valuation process becomes more complex. However, in cases where there was clearly no liability, the insurance company is not going to pay. After all, it seems that insurance companies have a knack for making money unnecessarily paying claims is not in line with their business model.

Once past the liability calculation, the insurer will then attempt to evaluate damages. The valuation will factor in medical costs and treatment both past and future. It will factor in lost income, permanent disability, disfigurement, pain and suffering and other elements of compensatory damages. Then it will determine its exposure for punitive damages, which contrary to common belief are very rare.

Once these potential damages are totaled up, the insurance company will set a range of settlement values within which it will settle. The insurance company will not deviate from those ranges unless there is additional evidence provided to support a higher settlement value. In other words, the plaintiff usually through an attorney will have to provide documentation, medical records, expert reports, economic analysis and so on to support a higher settlement value.

No amount of yelling or threats at the adjusters will move them off their settlement range. The common, "I will see you in court" will be met with a yawn if it warrants even that. One thing that many do not appreciate is that insurance companies have a herd of eager defense lawyers standing by who would like nothing more than to see you in court. In fact, the more they see you in court, the more money they make. So the threats and yelling will do you no good, and are much more likely to make your case more difficult.

Anyone contemplating a personal injury claim should understand that the value of their claim for the insurance company is a relatively straightforward mathematical calculation of liability and damages. There is no room for intimidation in math. It is far more effective to come to the table armed with proof of liability and damages. This proof alone is what will influence an adjuster into a fair settlement. Without it, there simply is no pot of gold waiting at the end of the mythical frivolous lawsuit.

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

Premises liability deals with the duty of an owner or occupier of land, such as a homeowner or tenant, to keep his or her premises visitors safe from personal injuries.

A homeowner or renter may be held responsible for his negligence that causes a person to be injured on his property. A common example of negligence that leads to liability for the owner occurs when there is a defect on the property, such as a tripping hazard due to uneven sidewalk leading to the door, that the owner or tenant is aware of but takes no action to warn visitors of the risk.

Another situation that would give rise to liability may relate to repairs or home improvement undertaken by the owner of the property. If the homeowner is repairing the stairway to his deck, and in those repairs has removed the railing so that it may be replaced, he has created an unsafe condition on the property. If he takes no action to either block off the stairs or otherwise warn visitors of the lack of railing and potential hazard, he may be found negligent and held responsible if a visitor falls when descending the stairs because there was no railing to hold onto for stability.

Homeowners insurance will typically cover the damages due to the owner or occupier's negligence. If the owner does something intentionally that causes injury to a visitor, that act is generally not covered by insurance and the homeowner will be held personally responsible. The most common situation that falls into this category is usually related to some home security measure that actually creates a risk of harm. However, most premises liability cases involve some negligence of the homeowner, even if there is some intentional act.

Interestingly, insurance coverage for premises liability often does not extend to household members. Generally the homeowner or tenant cannot be held responsible for negligence due to injuries that involve his immediate family.

Assuming the same stairway railing example, if the son of the homeowner descends the stairs and falls injuring himself, he will likely be unable to bring an action against his father as owner of the property for creating or allowing the existence of an unsafe condition on the property. The reasoning is that the a member of the household should have notice of what another household member is doing in the home so the member should know that his father is repairing the stairs and that he should be especially careful. Many homeowners insurance policies actually have a household members exclusion that specifically excludes household family members from bringing claims against the insured homeowner. This exclusion typically just excludes liability for household members, not non-household family members.

A renter of a property may also be held responsible as if he owned the property for things that are within his control or knowledge. Again, the uneven sidewalk that is a tripping hazard may be a point of liability for the tenant if he fails to take any action to warn visitors of the tripping hazard. In most rental agreements, the tenant is responsible for issues within his control, but the owner of the property is responsible for problems of which he is aware, for structural issues or problems due to mechanical sources such as heaters or stoves. If the tenant has advised the owner of the property of the uneven sidewalk and the tripping hazard, or if the owner is otherwise aware of the problem, the owner may be held responsible for the injury to a visitor of the renter who trips and falls on the uneven walkway. Possibly, the tenant may also be held responsible, but the liability is shared, not attributed solely to one or the other.

Sorting out responsibility and liability for some of these cases can be quite challenging. It is generally advisable to seek the guidance of an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

In drunken driving auto accidents, liability for the injuries and damages to innocent drivers and/or pedestrians may be spread across several different parties. Some liability is pretty clear under the dram shop liability laws and standard theories of negligence. Other possible avenues for compensation have been made more evident in recent criminal case developments.

Under common law negligence, the drunken driver is obviously liable for injuries and damages caused in a DWI car accident. In fact, the drunken driver may be held liable for punitive damages above and beyond compensatory damages.

Under dram shop laws in New Mexico, it is also clear that the bar or other provider of alcohol may be held liable for injuries and damages suffered as a result of an auto accident involving a drunken patron or guest. Dram shop liability may be imposed on a variety of providers of alcohol including bars, restaurants, retail liquor establishments, social hosts, and even airlines.

These bases for liability have been long and well established in New Mexico. One less common and less clear basis of liability that has arisen recently in criminal DWI vehicular homicide cases is passenger liability. In the case of State v. Marquez, a passenger was convicted of vehicular homicide along with the driver of the vehicle. The facts of the case were rather extraordinary with clearly reckless and dangerous behavior on the part of both the driver and the passenger.

Not every case will involve the level of recklessness and comparative negligence on the part of the passenger as involved in State v. Marquez. However, the question of possible passenger liability under comparative and contributory negligence theories should be addressed in every DWI auto accident. Not all passengers will be held responsible for the acts of a drunken driver.

There are those cases where the passenger may be held partially or even equally liable. After all, it may very well be the passenger that put the driver behind the wheel knowing full well of the dangers to innocent drivers and pedestrians. Liability of passengers for DWI car accidents will be determined on a case by case basis so injured parties should be aware of and explore these possible claims.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico is home to many Indian Casinos. They are very popular. Like any other business, particularly casinos, there are countless ways for patrons to be injured. When a personal injury occurs at or near an Indian Casino, the first and most important question is whether or not there is sovereign immunity protecting the tribe or pueblo form suit in New Mexico State courts.

For the most part, tribes and pueblos enjoy sovereign immunity against any kind of legal action. This includes everything from personal injury claims to contract disputes. Sovereign immunity means that suits against the tribes or pueblos must be brought in tribal court. This poses a very significant and often overwhelming challenge to plaintiffs.

In case of Indian Casinos or gaming, there is qualified immunity. Under the Indian Gaming Compact, the tribes and pueblos waive immunity for suits by visitors or patrons for personal injuries suffered in relation to the gaming enterprise.

Often times, when personal injuries occur at or near a gaming facility, the tribe or pueblo will attempt to argue that the accident and consequent injuries and damages were unrelated to the gaming enterprise. Many times, the connection is clear such as when a casino patron is injured while gambling at the casino, or while entering or exiting the casino prior to or following gambling activities. However, there is most definitely some gray area.

The New Mexico courts have generally shown great deference to the sovereign immunity claims of the State's many tribes and pueblos. The New Mexico Court of Appeals significantly curtailed tribal immunity in the case of Mendoza v. Tamaya Enterprises. This case involved a wrongful death suit against Tamaya by the guests of the Indian resort killed in a drunken driving accident following a wedding reception. There was no indication that the guests were there for gaming purposes but the New Mexico Court of Appeals found that there was no immunity for the tribe allowing the wrongful death suit to proceed in state court. The case is now on appeal to the New Mexico Supreme Court.

The case will have significant implication for guests and patrons of Indian resorts centered around Indian gaming, which is New Mexico is generally the case. As it stands, guests of the many truck stops, gas stations and restaurants adjacent to Indian Casinos face very difficult immunity issues in case of personal injury. Clearly, it is in the tribes' interest to extend the reach of immunity to all activities that do not actually occur inside the gaming facility itself.

Indian casino based resorts play host to countless visitors, many of which are there for events other than gaming. The position of the tribes and pueblos would leave little or no recourse for guests injured at weddings, parties, fundraisers, conventions, hotels, and bars on Indian casino grounds. This is clearly in the financial interests of these hugely profitable casino based resorts. Unfortunately, the interests of the visiting public are directly opposed to tribal immunity which will often bar recovery for claims no matter how great the negligence of the tribal enterprise and no matter how great the injuries

Collins & Collins, P.C.
Albuquerque Attorneys

In auto accidents cases, one might expect that the driving record of the negligent driver would be fully admissible at trial to help show that the person was at fault for the subject accident. Unfortunately, this is not always the case.

For instance, pre-accident driving records are not admissible to show the driver was negligent in the current accident. However, it may be admissible for other purposes such as a negligent entrustment claim. A negligent entrustment claim most often arises where an employer allows an employee with a bad driving record to drive a company vehicle. The company may then be held liable for any injuries or other damages caused by the employee under a negligent entrustment theory.

Post-accident driving records, no matter how bad, are often inadmissible at trial. Neither past driving behavior nor future driving behavior can be used to show the person was negligent in the current auto accident. Neither may future driving be used to prove a habit of bad driving under New Mexico law. Finally, unlike past driving behavior, future driving is not admissible on a negligent entrustment claim.

In order to show negligent entrustment, the company must have known of the employee's negligent driving habits. The company may be held to knowledge of the employee's prior driving behavior. This is the case even if the company does not have direct knowledge but could have discovered the driving history through background checks.

On the other hand, an employer cannot be imputed knowledge of bad driving habits based upon future driving behavior. Thus, without more, the employer will not be held liable under theories of negligent entrustment for the employee's actions in causing an auto accident. The employer may very well be liable on a number of other grounds, but not by way of negligent entrustment.

In short, though one might expect the driving behavior of a negligent driver to be most relevant evidence to prove fault, there are fairly strict limits on when and for what purpose driving behavior is admissible at trial in a car accident case. The injured person may simply have to rely on other evidence of fault than the driving history or driving habits of the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys

Spoliation of evidence, or more commonly understood destruction of evidence, can result in the dismissal of a homeowner's claims against a negligent builder, subcontractor, architect, engineer or other party responsible for a new home's defects. The obvious question is how would spoliation of evidence occur?

The answer is that it could occur quite innocently. Whenever a homeowner takes it upon him or herself to repair problems, there is the possibility that evidence will be destroyed. Perhaps more accurately, it is possible that the negligent defendant will assert a defense of spoliation of evidence purely as a tactical matter. In fact, this defense is preached by the construction defense bar knowing full well that many homeowners will take action to repair or fix their most valuable asset rather than standing idle waiting for the contractor the fix the problem.

Many times, homeowners meet with delay after delay in addressing their problems with contractors or builders. Their grievances are routinely ignored. And why not, if the homeowner finally and predictably takes action on the problem, the contractor now has one more line of defense against a construction defect lawsuit.

To avoid the possibility or suggestion of spoliation of evidence claims, the homeowner should contact the builder or contractor immediately in writing with a detailed description of each and every defect. The injured homeowner must give the defendant notice of any intended repairs. Finally, the plaintiff must give the contractor, builder or other defendant the opportunity to inspect the defects themselves prior to any such repairs by the homeowner.

Once notice of repairs and opportunity to inspect is provided, the homeowner should document both the original defects and the repairs very carefully. As one might expect, the contractor or builder is likely to have a very different view of what happened partly due to their own self-interested documentation of the problems and the fixes. It is safe to say that these problems and repairs can never be over documented, but they most certainly can be under documented.

Once again, failure to provide notice and opportunity and to carefully document the defects and the subsequent repairs will undoubtedly lead to the spoliation of evidence defense. Careful attention and documentation should cut off this defense. Failure to provide notice and opportunity to inspect can and does lead to a dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

New homeowners are often provided with a written warranty on their home. These warranties are usually part of the home purchase contract and differ from builder to builder.

New home warranties often provide for a relatively short warrantyperiod of one or two years. However, construction defects are often not apparent until well after the expiration of the warranty period. When homeowners complain about problem with their homes after this period expires, builders often turn a cold shoulder, citing the warranty language. Many homeowners accept this response under the misperception that their only recourse against their builder is lost after the warranty period expires.

There may be some builders that innocently claim protection under the warranty. Of course, this would be a very inexperienced or poorly informed builder with whom it was ill-advised for the homeowner to do business in the first place. More often, the builder is fully aware that the warranty does not preclude claims for serious construction defects. Instead, the builder is simply attempting to escape liability for the defects and responsibility for the costs of repair.

These limited new home warranties do not provide a homeowner's only recourse for construction defects. First, they may or may not cover all structural components of a home. Some warranties are limited to such issues as appliances, heating and air, minor mechanical issues and the like. Regardless, the one year warranty does not protect a builder from claims for construction defects based on negligence or misrepresentation or even from certain other contract claims. Homeowners may still have viable claims for damages for problems such as water leakage, foundation issues, improper soil preparation, architectural or engineering defects, stucco or drywall defects or any other significant defect in construction, engineering or design.

Instead, the homeowner is limited only by the relevant statute of limitations. The statute of limitations for claims based on a contract are 6 years and the statute of limitations for negligence claims is 3 years. In addition, New Mexico has a 10 year statute of repose relating to claims that are not discovered for several years after substantial completion of the home's construction.

Due to the latent nature of construction defects, it is important to take seriously any indication of construction problems. A seemingly minor construction problem may well indicate far more serious construction defects. In addition, minor problems may suggest a sloppy or negligent builder. For instance, a rainwater leak may indicate other more serious problems with the stucco, drywall, roofing or foundation. It may also hint at other construction, architectural, engineering and design issues. After all, a sloppy or negligent builder is typically sloppy through and through.

Address the signs of construction defects early. Ignoring the problem is certainly not in the homeowner's best interests. Delay in addressing signs of construction defects will raise failure to mitigate damages issues. Worse still, failure to address the problems within the statute of limitations period will bar the claims completely.

Collins & Collins, P.C.
Albuquerque Attorneys

Sadly, many marriages end in divorce. Depending on the study, it is estimated that 40 to 50 percent of marriages will end in divorce. It is not uncommon that these marriages end poorly. There are often lingering hard feelings and emotional scars left by the marriage and the divorce itself. Those are bad. And then there are those that end with STD's.

There is typically spousal immunity for personal injury lawsuits by one spouse against another. This means that one spouse cannot generally sue the other spouse for personal injuries suffered as a result of wrongful conduct by the other spouse. This immunity is quite broad with historic policy considerations meant to protect the privacy and sanctity of marriage by keeping such disputes out of court. In fact, these policies are the basis for no-fault divorce that exists in most states, including New Mexico.

However, there is a growing willingness of courts around the country to recognize a cause of action by one spouse against the other for the transmission of sexually transmitted diseases. In fact, there have been some very large damages awards in personal injury lawsuits between spouses for the transmission of STD's.

New Mexico has not addressed the issue at the appellate level. There are a number of challenges to such a suit. Foremost among these challenges, as with all personal injury suits, are the insurance coverage issues which could be numerous.

Another issue that will likely arise is whether the STD was negligently or knowingly transmitted. Traditionally, New Mexico courts have drawn a distinction between intentional and negligent torts in determining spousal immunity. Spouses were protected from suit on negligence claims. Immunity was far more likely to be waived in case of intentional torts. Whether the act was negligent or intentional also has insurance implications since most insurance policies do not provide coverage for intentional acts.

It is estimated that up to 60 million or 1 in 5 Americans have some variety of sexually transmitted disease. Some of these can be physically devastating, others deadly. The privacy and sanctity of marriage have historically been highly guarded by the courts. This was said to justify spousal tort immunity. Unfortunately, there is no such immunity against STD's.

There appears to be a willingness of courts in other states to discard the pretexts of marital sanctity in these cases. It remains to be seen if New Mexico will follow suit at the appellate level.

The antiquated policies surrounding spousal immunity no doubt did not contemplate 60 million carriers of STD's or the risk of these being brought into the marriage. There is no reason to deny an innocent spouse recovery for injuries and damages resulting from STD's. After all, once an STD is introduced into the marital relationship, what is there left for the court to protect?

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

On occasion, a party responsible for an accident and personal injuries will offer to pay for medical expenses related to the injuries. This most often occurs in slip and fall accidents at retail establishments. It is just as common that the party later reneges on the agreement. On the rather rare occasion when the negligent party does pay for expenses, the question of liability and damages is still not necessarily settled.

In most cases involving personal injuries, there is some type of insurance involved. This certainly true of slip and fall accidents Insurance companies are not prone to pay out money on medical expenses or any other damages in the absence of liability on the part of their insured. In case of slip and fall accidents, it seems as common as not that the promise to pay is simply a ploy to get the customer out of the store as quickly as possible. In other types of accidents, there may at first be an admission of liability with a later denial once the full scope of damages is known. In other words, they may accept liability on what they believe to be a small claim which is fact turns out to be a large claim.

This can be both perplexing and frustrating to an injured plaintiff. Yet it is generally allowable under the law. In fact, it is codified in Rule of 409 of both the New Mexico and Federal Rules of Evidence. Rule 409 states; "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by an injury is not admissible to prove liability for the injury."

What this means in practice is that a plaintiff cannot use the payment of medical expenses by the negligent defendant at trial for purposes of proving responsibility or liability for the injuries. The payment of medical expenses may be used at trial for other limited purpose but not for showing liability.

The Rule purports to serve a very valuable purpose. After all, it is said that the law does not want to discourage payment of medical expenses even where those expenses and the related injuries are in dispute. The rule allows the payment of perhaps disputed medical expenses in turn providing for the medical care of an injured party.

On the other hand, it is extremely rare where a defendant, particularly an insurance company, would pay out damages early in a case on disputed claims. Instead, the insurance company would want a release of claims in return for the quick and cheap settlement of disputed claims. This is far more common and occurs with some regularity.

In cases of real personal injuries, a quick and cheap settlement is generally going to be far more advantageous to the insurance company than to the plaintiff. After all, insurance companies and defendants generally are not in the business of philanthropy and they unlikely to offer to pay medical expenses out of the goodness of their hearts. This brings us back to where we started which is insurance companies are not inclined to pay out disputed claims yet the payment of these claims cannot be later used against them at trial.

Collins & Collins, P.C.
Albuquerque Attorneys

Customer or invitee slip and fall accidents are a common occurrence for businesses of all types. Sometimes, they are unavoidable. On occasion, customers/invitees simply fall at no fault of the business owner. There are also occasions where customers fall strictly due to their own negligence.

If the accident was unavoidable by the business owner, then typically the business will not be held liable for the damages resulting from the accident. There are many times when the actions of both the business and the customer/invitee combine to cause the accident. The question of liability is more complicated in these cases.

Many business owners believe that if the customer/invitee is aware of the hazards and is injured anyway, then the business will escape liability for any and all personal injuries suffered by the customer. This is not the case in New Mexico.

There are states that apply contributory negligence principles to personal injury lawsuits. Under contributory negligence, if the customer (or injured party in any other personal injury matter) is even a little at fault, then his or her claims are barred completely. Contributory negligence rules have extremely harsh consequences for injured persons since it could be argued that there is some small level of fault on the injured party in almost every personal injury case.

Recognizing the harshness of contributory negligence, New Mexico follows the more equitable comparative negligence rule. Under this rule, fault is apportioned between the parties. The apportionment will result in a pro rata reduction in liability for the business owner. In other words, if the business owner is only 50% at fault, then the business owner is liable for only 50% of the damages.

Comparative negligence goes further than the 50/50 split. Even if the business owner is only 10% responsible, then the business will be held responsible for its portion of the fault. In cases of serious personal injury or wrongful death, 10% can amount to significant liability.

The principles of comparative negligence are most striking in cases such as construction or repair. For instance, it is well established that even though a customer/invitee is well aware of the hazards of construction, remodeling or repairs such as debris left around the construction site, the business is not totally relieved of liability for the customer/invitee's injuries if the business was also negligent. Just as in any other personal injury case, the liability will be apportioned according to the negligence of each party.

A business owner is well advised to avoid any negligence and to keep the business premises free of possible hazards. Even hazards that should be obvious to the public, if negligently created or allowed, may result in liability in case of an accident.

Collins & Collins, P.C.
Albuquerque Attorneys

People are often injured at work. In fact, in 2007 alone, there were almost 4 million work related injuries over 5000 of which were fatal. On many occasions, these injuries are caused by individuals outside the injured worker's employer.

The most immediate question that arises for an injured worker in this situation is who is responsible for his or her injuries. The answer is both the employer and the third party. However, this answer is qualified by the Worker's Compensation Act.

The employer is required by New Mexico law under the Worker's Compensation Act to carry worker's compensation insurance for all work related injuries. Therefore the injured worker can and should make a worker's compensation claim through the employer's insurance.

In return for compliance with the Worker's Compensation Act, the employer is sheltered from personal injury lawsuits by the employee in all but the rarest situations. In fact, the employer's gross negligence is not enough to waive the protections of the Worker's Compensation Act.

In short, the employer will not be liable in tort for any injuries suffered by the worker. The employer's liability and the worker's right to recover against the employer are both limited to recovery under the Worker's Compensation Act.

Unfortunately, the Worker's Compensation coverage is often grossly inadequate to cover the full spectrum of damages in cases of serious or catastrophic work related injuries. Though the Worker's Compensation Act limits the employer's liability, it does not limit the liability of third parties that caused the harm.

There are countless situations where the worker's injuries were caused by third parties. These include injuries caused by contractors, sub-contractors, vendors, customers, visitors, guests and others that come in contact with the worker during the course of a workday. Among the most common are auto accidents.

By way of example, in case of an auto accident, the worker would be limited to recovery against the employer under the Worker's Compensation Act even if the employer were partly responsible for the accident. This would be the case in virtually all cases unless the conduct of the employer met the very employer friendly standards set forth in Delgado v. Phelps Dodge. Though the worker may assert a worker's compensation claim in this case, the worker would be well advised to explore recovery from the other driver.

The same would hold true for any other work related injury caused by a third party. Due to the severe limitations on recovery under the Worker's Compensation Act, it may well be that full recovery for the worker's injuries and damages will come only through the third party.

Collins & Collins, P.C.
Albuquerque Attorneys