New Mexico Injury Attorney Blog

In New Mexico, if you suffer an injury in an accident that is due to someone else's negligence, you can recover damages for your injuries from the defendant or the defendant's insurance company.

A plaintiff can recover damages to reimburse the plaintiff for medical expenses, lost wages, pain and suffering and other damages associated with the injuries. However, if you have a pre-existing condition or injury that becomes aggravated or worsens because of the accident, you must admit the pre-existing condition and injury to the defendant.

Failure to admit a pre-existing condition or injury can seriously harm the person's personal injury claims. In some cases, failure to admit through active concealment can result in sanctions, attorney fees and costs and even dismissal of the lawsuit.

A pre-existing condition is a condition that the plaintiff had prior to the accident like a back or neck injury. An experienced personal injury lawyer would far prefer dealing with these injuries upfront than learning of them later through the personal injury discovery process. In fact, the preexisting injuries do not necessarily harm a personal injury claim. However, deceit and concealment of those same injuries always will when discovered by the opposing insurance company. And it is safe to assume that they will be discovered so it is best to address them early and candidly.

The opposing insurance company will always conduct its own discovery on the personal injury claims. The depth and scope of the discovery will depend on the size of the claim. However, even in minor claims, the insurance company will request medical records. In fact, those related to the accident must be provided by your personal injury attorney along with the demand. The insurance company may very well request more than what is provided. Quite often, the insurance company will request the last 10 years of medical records and these must generally be provided.

The collection of medical records can proceed in one of two ways. The plaintiff gathers and provides them. Or the insurance company simply obtains names and addresses for all medical providers along with HIPPA releases and obtains them directly. In fact, even when the plaintiff does provide them during the settlement process, the insurance company may elect to get the records directly anyway.

As noted, the existence of preexisting injuries or conditions does not necessarily you're your claim. In fact, New Mexico like most states follow the "eggshell plaintiff" doctrine which means that the defendant takes the plaintiff with all his or her frailty, susceptibility to injuries, preexisting conditions, and prior injuries. In short, the defendant will be responsible for the aggravation of or reoccurrence of prior conditions or injuries.

The point is to discuss the matter with your attorney immediately. If you have doubts whether the issues are relevant, err on the side of disclosure. Concealment, even arguably innocent concealment, will do nothing to advance your claims.

Related Reading:

• Concealing Preexisting Injuries Can Seriously Harm a New Mexico Personal Injury Claim


• Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

Nursing homes are responsible for every aspect of care for their residents. To this end, nursing homes must keep accurate and timely documentation of the services that they provide their patients--from feeding and medication administration to physical therapy sessions. Accurate record keeping is essential to providing adequate nursing home care.

Unfortunately, , many nursing homes fail to keep proper records. Others still will falsify patient records to protect themselves from liability for personal injury lawsuits for the neglect and/or abuse of patients. While these practices are not uncommon, even inadvertent or neglectful inaccurate recordkeeping is dangerous and unacceptable. Inaccurate recordkeeping can and often does lead to severe injuries to patients. Sadly, in some cases these practices can even lead to the death of the resident.

Nursing homes are required to keep certain records by federal law. Under the federal Nursing Home Reform Act (Act), 42 USC § 1395I-3, a nursing facility is required to conduct an initial assessment of a resident's capabilities, medical issues, and needs within 14 days (7 days for Medicare) of admission. These assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident.

Based on the assessment, nursing facilities are required to formulate a comprehensive care plan within 7 days after the assessment is finalized. Falsification of assessment documents or care plans carries a civil monetary penalty that ranges from $1,000 to $5,000 per occurrence. Nursing facilities are also required to document pharmaceutical, nursing, rehabilitation, dietary, and social services performed.

However, reports around the country demonstrate on-going fraud and falsification of records in nursing homes. Research and case studies have revealed that there are several ways in which a nursing home can forge records and harm patients. The three most common patterns include falsification of records to cover up unfavorable outcomes, "fill-in-the-blank" chart keeping, and false medicine recording.

In many cases, nursing homes try to minimize their liability by changing a patient's records or failing to report incidents after an injury or death. Earlier this year, a nurse at a New York nursing home was found guilty of falsifying a patient's medical chart after the resident suffered a serious fall that was not documented. In another case, after witnessing a member of the staff severely beating a patient, an EMT was advised not to report the incident by a nursing supervisor. Though these may seem extreme lesser instances of failed reporting occur with regularity.

Some of these result from a variety of institutionalized practices. For instance, fill-in-the-blank charting occurs when nursing home staff members fill large numbers of charts at the same time without really knowing whether the treatment, medication, or diet was provided or whether the information they enter is accurate. This may happen in understaffed nursing homes or when an employee is not being properly trained and supervised. One nursing home in Santa Monica recently settled a case where a patient's chart claimed that the resident was given physical therapy several times a week. However, up to 28 of the sessions were documented by staff members who were not working on those specific days.

Similar to the above, falsified medication recording are not uncommon where staff members document that medication is being given in a certain dosage when in reality the dosage is incorrect, the medicine is not being administered at all or the wrong medication is being given. Other patterns that are not as common but still occur include backdating or forging arbitration agreements and falsification of consent forms to sedate residents. This practice may become more common with the recent United States Supreme Court opinion holding these agreements fully enforceable even under rather suspect circumstances surrounding the execution of the agreements.

Even though falsification of records and documentation is widespread in the nursing home industry, facilities are not often prosecuted or cited for this violation. Discovering and proving the falsification of records is so difficult and time-consuming that state agencies rarely have the time and resources to complete a thorough investigation.

Even though it may not avoid falsifications entirely, many personal injury attorneys suggest that staff is less likely to alter the records of a patient whose family is involved in their care. If you suspect that a nursing home is falsifying a loved one's records, it is important to contact a personal injury attorney immediately. Delay may make proving the violations somewhat more challenging.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Bureau of Labor Statistics 3.1 million nonfatal workplace injuries and illnesses were reported in 2010. A preliminary total of 4,547 fatal workplace injuries were reported for the same year. Most companies and employers in New Mexico are responsive to laws concerning job-related injuries. However, stories of how companies have refused to pay worker's compensation benefits are constantly surfacing in the news. It is natural for individuals injured in a work-related accident to wonder if their employers have done everything they can and are required to do by law.

Under the New Mexico Workers Compensation Act (Act), if a personal injury or death occurred while an employee was performing a work-related duty, the employee is entitled to worker's compensation benefits for his or her injuries. Worker's compensation in New Mexico covers medical, indemnity, and funeral benefits. Medical benefits include physical care and therapy, hospitalization costs, psychiatric care, counseling, chiropractic treatment, medication, and prescribed medical equipment.

Depending on the extent of injury, New Mexico Worker's Compensation is meant to cover a portion of income while the disability lasts. The types of benefits available are total disability (TTD), permanent partial disability (PPD), and permanent total disability (PTD).

However, the Act limits the amount an employee is able to recover for a personal injury or death that occurred on the job. In fact, in cases of serious injury or death, the benefits allowable under worker's compensation are sorely inadequate. For injuries suffered on the job, the benefits allowable under the Act are the exclusive remedy for those employers that are in compliance with the provisions of the Act.

Having said this, there may be several reasons to contact an experienced personal injury attorney for injury or death arising from a work-related accident. In some cases, employers fail to live up to their responsibilities under the Act. If the employer has failed to obtain worker's compensation insurance, then the employer will not be protected by the Act. Without the protection of the Act, the injured employee may sue the employer for all recoverable damages just like any other defendant.

In other cases, there may be a third party involved in the work-related injury. Third parties can be part of a work related injury in many ways. For example, there may be several different contractors working on a construction site where an employee is injured. For workers whose jobs involve transportation, the negligent acts of another driver or passenger may injure them. In yet another case, a worker may be injured on the job by a defective product manufactured by a third party. In all of these cases and many others, an employee may have a personal injury or wrongful death suit against a third party above and beyond their worker's compensation claim.

Generally, if an employer is complying with the Worker's Compensation Act, an employee may not bring a worker's compensation claim against the employer. Nor can an employee sue to the employer in personal injury. If, however, the employer is not complying with the Act, or there is a third party involved, the injured employee may have a valid personal injury claim. In these cases, it is important to contact a personal injury attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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


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


• maternal hypotension, or low blood pressure


• uterine rupture, including intrauterine hemorrhage


• maternal or fetal cardiac complications


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


• medical negligence

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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