New Mexico Injury Attorney Blog

Immediately following any personal injury accident, it is important to document all of the particulars surrounding the event, as well as preserve any evidence that can support your claim. Time has a way of eroding these details if left to memory several weeks later, so write down the details at your first opportunity. If you are unable to preserve this evidence due to the extent of your injuries, obtain the help of a family member or friend.

Transport by ambulance or other emergency medical personal will create a good record of medical treatment related to the accident. However, if you were not taken by ambulance, be sure to follow up with your health care provider as soon as possible. This will insure formal documentation of your injuries by a third party. Be sure to photograph any visible injuries without delay, as they can change quickly over time.

Revisit the scene of the accident as soon as practical. In the case of an automobile accident, it would be helpful to visit the scene at the same time of day on the same day of the week as when the accident occurred. Make note of the traffic conditions, traffic controls and road conditions. Take photographs of the area for those who may not visit the scene in person.

In the case of a slip and fall or other liability type claim, return to the scene as soon as you are able. Repairs or improvements are typically made quickly to prevent further liability. In addition, other conditions can change rapidly such as icy or slippery walkways. If possible, photograph the areas, dangerous conditions or obstacles that caused the accident.

Identify any witnesses to the accident at the time of the accident particulaly those that were not included in a police report or when a police report was not prepared. They may have seen or heard things that escaped your attention. In addition, their testimony carries far more weight than yours in case there are disputed facts. You will want to contact witnesses promptly, as memories have a tendency to fade and people frequently move.

Continue to take notes as you recover. These notes can include the effects the accident has had on your daily life, as well as the pain and limitations you have had to face. You may also want to document your mood, including any anxiety or depression issues, and sleep disturbances.

Good record keeping will ease some of the stress you feel when working through a personal injury claim to its resolution. Taking the steps necessary to preserve evidence and document your injuries and damages is key to a successful outcome in your personal injury claim.

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

The Institute for Legal Reform, an admitted national campaign from the U.S. Chamber of Commerce, is circulating emails to gain support from the public for tort reform. The email captioned "Does America Need More Jobs -- Or More Lawsuits?" calls for an end to "lawsuit abuse." What it really calls for is corporate immunity for reckless and dangerous corporate behavior that harms consumers, workers, the environment and every other corner of our society.

It is odd timing that the email comes out in the midst of the worst corporate disaster in our nation's history. It is the predictable opening salvo in the inevitable U.S. Chamber and right wing efforts to shield BP, its partners, and other like-minded corporations, from responsibility for the harm their negligence and recklessness cause society.

The email suggests a fictional $1.6 billion tax break for trial lawyers. Of course, the email does not mention the subsidy that taxpayers will provide to BP, Halliburton, Transocean and Cameron for the massive damages caused by the BP spill. Nor does it mention the billions in tax credits awarded to the oil industry each year or the billions more in environmental damage that the oil and gas industry cause each year. It fails to mention that it is the taxpayers that pick up these costs. Most of all, the Chamber fails to mention the thousands of businesses and hundreds of thousands of residents along the Gulf Coast who have suffered permanent and devastating financial and emotional harm from the BP disaster.

Make no mistake, the Chamber will speak up once those harmed by the spill take legal action beyond the wholly inadequate $20 billion that BP has dedicated to cover the harm it has caused. There will be thousands that accept very small settlements out of economic desperation. Others are completely barred from the funds because they are not close enough to the coast to qualify for compensation. Instead, very strict rules on compensation along caps on damages have been set up to protect BP, not those that were harmed.

Those that refuse to accept less than they are owed and take up legal action will face years of expensive and stressful litigation. In the meantime, many have lost their financial livelihood and way of life. If they are compensated at all for their losses, it will be years as with the 20+ year litigation of the Exxon Valdez.

Yet it is not BP that the Chamber points out as a drain on society, it is trial lawyers. These are the very same trial lawyers that worked for over 20 years to compensate the victims of the Exxon Valdez. And it is same lawyers that will be seeking compensation from BP. It is the same lawyers that will greatly reduce the costs to taxpayers by avoiding what would otherwise be public assistance to pick up the uncompensated losses to those harmed by the BP spill.

It is these same lawyers that finance this litigation at their own costs and do not get paid a dime unless their clients recover that the Chamber fears will bring down our economy. The Chamber calls these lawyers opportunistic. I am not sure what to call the Chamber's behavior. Maybe, we can ask the thousands upon thousands of workers who have lost their jobs as a result of BP what they need most, jobs or lawsuits. Unfortunately, due to the negligence of BP, the answer is they need both.

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

When facing the uncertainties of a personal injury accident, it is important to know that your personal health information is protected by federal law. As a result, your medical care providers and insurers are required to safeguard your personal health information. Thus, anyone requesting your personal medical information must comply with both the Privacy Rule and the Security Rule found in the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The HIPAA was created to increase the efficiencies of the health care system, by creating national standards which protect "individually identifiable health information". This information includes your current and/or prior medical history, as well as anything that would specifically identify you, such as a social security number or birth date.

Within HIPAA is the Privacy Rule, which gives you rights over your personal health information in any form, whether verbal, written or electronic. Protected information includes the written information that is in your physical medical chart, as well as electronic data kept on your health care provider's computer system. Protected information also includes conversations you've had with these providers and your personal financial information used for billing purposes. It even includes information about you kept by health insurance companies, including Medicare and Medicaid.

The Privacy Rule provides a method for disclosing this protected information to others, but does set limitations. In the case of a personal injury claim, there may be insurance companies, governmental agencies, law firms, medical experts and others enlisted to defend against your claims. Your health care providers can only release your personal medical information to these entities after receiving your signed authorization, which specifies to whom the information will be sent along with the scope and date ranges for the medical records to be released.

Your personal medical information can be released by court order, but the information requested must be specifically identified, and only this information will be released. Subpoenas for your personal medical information are not the same as a court order unless issued by and upon the order of the Court. Subpoenas are typically issued directly by lawyers, who must comply with the Privacy Rule as well. They must either notify you of the request, so that you have an opportunity to object, or they must seek a "qualified protective order" through the court. A subpoena alone without the order of the court is not sufficient for the defense to obtain your medical records.

Though HIPAA laws will protect against unauthorized release of medical information to the defense, the discovery rules are fairly liberal. The defense will typically be able to obtain almost all medical records for seven to ten years prior to any accident or injury claimed in a personal injury lawsuit. Any records beyond that may be protected. And HIPAA will most definitely prevent the release of records without proper legal releases or court orders.

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

The Tort Reform movement paints every personal injury claim as an assault on small business, doctors, health care, the public, the very American way of life. Every jury verdict is claimed as a victory of greedy trial lawyers and opportunistic plaintiffs who are just trying to profit at the expense of America. The tort reformers are not subtle in their claims. Unfortunately, their claims are completely false directed toward the protection of insurance industry profits.

This truth is born out in court every day, in every state, in every personal injury case. The mention of insurance coverage in personal injury actions is strictly prohibited. It is argued that jurors would unfairly factor the coverage into their decision-making. What escapes reason and discussion in the Tort Reform error is that jurors routinely and erroneously factor into their decisions the possibility that a large verdict would unduly harm the defendant whether it be a doctor, small business, large business, or individual.

In fact, this lie underlies the entire Tort Reform campaign which relies on the fact that the jury and the public are never told the truth behind each and every personal injury case. That truth is that personal injury cases are rarely filed at all unless there is insurance coverage. Insurance is called upon to reimburse plaintiffs for their injuries. In most cases, there is no point in filing against an uninsured defendant. Most uninsured individuals or businesses have no assets either. One of the first things anyone does upon the acquisition of wealth or assets is to obtain insurance to protect them. Where the defendant is uninsured, which is quite typical in auto accidents in New Mexico, the typical best case outcome is a large but uncollectable verdict. Few lawyers would put their clients or themselves through such a futile endeavor.

The truth is that the insurance industry, which records obscene earnings and profits each year, relies on the jury's lack of knowledge to protect not the doctor, the small business or the public but to protect its own profits. In the end, due to the huge success the lies of Tort Reform have in had on swaying juries against injured plaintiffs and effectively passing on the insurance industry's liability, it is both the public and the plaintiff who are harmed.

The Tort Reform movement in its successful campaigns for the protection of the insurance industry effectively shifts the costs of the insurance industry to the injured plaintiff and the public. After all, who pays when a plaintiff is horribly injured, forced to endure a lifetime of medical treatment and often unable to work? Medicare, Medicaid and Social Security then pick up the tab for what was contractually the responsibility of an insurance company. These costs are of course passed on to the public through taxes and debt.

Keep this in mind the next time you hear that personal injury suits harm the public. It is not the personal injury suit, the attorneys, or the plaintiff that hurt the public, it is the passing on of insurance coverage responsibilities from the ever successful and profitable insurance industry to the public health and welfare agencies that causes the true harm to the public.

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

It is fairly common that those that have been injured in accidents, particularly auto accidents and slip and fall accidents , are receiving Medicare benefits at the time of the accident, or as a result of the accident. What many do not realize is that Medicare has a lien against any personal injury recovery for damages awards or settlements received as a result of the injuries.

It is difficult at times to explain to injured persons the law or the logic behind the liens. In a nutshell, Medicare has the right to recover all Medicare benefits expended to treat the person's injuries. In addition, Medicare can insist on a set aside of personal injury funds for future treatment of those injuries. These liens can be very large in cases of serious personal injuries. On occasion, the size of these liens can render the personal injury recovery process, particularly in complex litigation, futile and a waste of the injured party's time and energy. After all, litigation is extremely stressful and costly. In these cases, the injured person must decide whether he or she wants to work that hard simply to repay Medicare.

The decision to move forward with the personal injury recovery process, and perhaps litigation, is made even more difficult by the fact that recovery itself, and the failure to properly address Medicare liens can result in significant liability, penalties and even forfeiture of future Medicare rights.

Here are the basic ground rules:

• Medicare must be reimbursed within 60 days of the settlement or judgment. This means that the issues must be addressed well in advance of final settlement or judgment to avoid inadvertent violation of the law.
• The defendant, generally the other party's insurance company, must report a possible recovery to Medicare. The defendant is liable to Medicare if the injured party fails to properly address Medicare liens. Consequently, many defendants will make Medicare one of the payees.
• The injured party's attorney is responsible for the full amount of the lien in the event that the injured party does not pay. This means that your attorney will not distribute any funds, yours or theirs, before addressing Medicare.
• The penalties for failure to properly account for Medicare liens are severe. The defendant can be fined $1000 day for failure to notify Medicare of the possible recovery. The injured party and both attorneys, may be all held individually liable for up to double the full amount of Medicare lien.

This all sounds pretty bad. And it gets worse. Medicare is completely non-responsive to attorneys on either side in their attempt to determine the amount of the liens. It can take months to get any response at all from Medicare. The process of negotiating the liens takes even longer. This makes these cases particularly stressful and time-consuming for injured persons. Often, the only thing holding up settlement is the Medicare lien. There are times when the Medicare lien will prevent a settlement. Worse yet, in many of these cases, costly litigation is simply not warranted. The end result is that in some cases the injured party gets nothing, Medicare gets nothing, and the defendant who caused the harm completely escapes accountability. That's Medicare protecting your tax dollars.

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

The class action lawsuits have begun in the BP spill. The first suit filed by Beasley Allen was filed to recover damages, past and future, suffered by the restaurant owners along the Alabama coast. Further suits can be expected in other Gulf Coast states and from other industries harmed by the spill. The real question is what to expect from BP, Halliburton, Transocean and most of all from Congress.

Alabama alone brings in over $3 billion a year in Gulf Coast tourism. Texas, Louisiana, Mississippi and Florida likely bring in comparable Gulf Coast tourism revenue. The tourism losses will spread beyond restaurants to lodging, shopping, fishing, water sports, travel and so on. The loss in tourism dollars alone is far greater than the $75 million cap on damages for coastal drilling accidents.

There are many other direct costs that may well dwarf the loss in tourism such as the destruction of the fishing industry, the coastal wetlands, the ocean itself, and of course the massive cleanup efforts that will be required for even nominal success in remediation of the areas affected by the spill. The indirect costs could in turn dwarf even these costs. Meat and poultry prices have already begun to rise. Gas prices will surely begin to rise. Groceries across the board will rise in costs as a result of the increased fuel costs associated with getting products to market. The rise in energy costs will affect every area of our economy likely slowing the economic recovery from the recent recession. The unemployment throughout the Gulf Coast and across suppliers of goods and services to Gulf Coast businesses will likely sky-rocket. Then there is the property damage that will be suffered by the plummet in property values across the Gulf Coast. A coastal mansion or resort is probably not as picturesque as it might be with black toxic beaches littered with decaying fish and other wildlife.

All the while the first congressional hearings on the spill saw BP, Halliburton and Transocean all denying responsibility for the spill. This comes on the heels of BP's initial public relations ploy to accept full responsibility for the disaster. BP continues to state that it will cover all "legitimate" losses. This is what comes out of one side of their mouths. The other side continues to try to chip away at their responsibility and the definition of "legitimate." BP, Halliburton and Transocean will continue to cast blame on one another, and eventually they will probably try to blame the Mineral Management Service. They may even try to blame probably Obama which seems to be standard conservative response to every problem and have no doubt that the oil industry is firmly in the conservative camp. In addition to shifting blame, they will seek cover under the $75 million cap on damages. They will dispute every claim. The will dispute the direct losses such as the costs of cleanup and the destruction of the fishing and tourism industries along the coast. They will not even entertain the thought of compensation to the American taxpayers and property owners for the indirect costs. Do we really expect that these costs will be fully compensated when BP, Halliburton and Transocean are already disputing liability and fault?

The real remaining question is whether our leaders in Congress will force full accountability and responsibility for the harm that this spill has caused and will continue to cause our country. Or will they instead relent to the oil industry as they have so many times before. It always come down to the money. The question is whose money our leaders will value most, the taxpayers' money or their own oil industry campaign contributions? It is clear whose money dictated the absurdly low $75 million cap on damages. Whose money will speak moving forward. You do have a say. Let your representatives know whose money they should be watching.

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

Punitive damages are awarded in limited cases for the purposes of punishment of the defendant. Punitive damages also serve to deter similar such behavior by the defendant and others similarly situated. In New Mexico personal injury cases, punitive damages are awarded only when a defendant's behavior is found to be malicious, willful, reckless or wanton.

Many New Mexico personal injury claims assert a claim for punitive damages but the "malicious, willful, reckless or wanton" standard is pretty difficult to meet. In essence, the defendant's behavior must be pretty outrageous in nature to justify a punitive damages jury instruction from the court.

In auto accident cases, the question then arises whether insurance will cover the punitive damages awards. This question actually involves two separate elements. First, will the negligent driver's auto insurance liability limits cover a punitive damage award? Second, assuming that the negligent driver's insurance is inadequate to cover the total damages award, will the innocent driver's uninsured/underinsured motorist coverage cover any part of the punitive damages award? These same issues would arise in a pre-trial or pre-litigation settlement. On the other hand, it is a rare and generous insurance company on either side of the claim that would admit the propriety of punitive damages prior to litigation.

The answer to both questions is yes. Insurance coverage, both liability and uninsured/underinsured motorist coverage, provides coverage for punitive damage awards in a New Mexico auto accidents. The innocent injured driver is entitled to recover for all allowable damages under the New Mexico personal injury law.

The issue will generally not arise in the case of liability coverage since liability coverage in New Mexico auto accidents is generally grossly inadequate. New Mexico carries the highest percentage of uninsured drivers in the nation with many more severely underinsured. Thus, the liability coverage limits will typically not even cover the compensatory damages, much less the punitive damages.

Instead, the issue will more often arise when the innocent driver makes a claim on his or her uninsured/underinsured motorist policy. Some insurance companies will attempt to deny these legal claims. However, the law is clear and has been clear for quite some time since the 1991 New Mexico Supreme Court case of Stinbrink v. Farmers Insurance Company of America. The Court in Stinbrink made clear that uninsured/underinsured coverage does provide coverage for punitive damages.

Even here, however, policy limits often become an issue. New Mexico drivers typically carry inadequate liability limits to cover the harm that they do. Likewise, they generally carry woefully inadequate uninsured/underinsured coverage as well. As such, the findings in Stinbrink are purely academic in most cases as the insurance policy limits will always dictate the coverage in any particular auto accident case.

Insurance issues are confusing. The policies themselves typically provide very little illumination and may leave some even more confused after reading. Thus, it is important to consult with a New Mexico attorney to address the many coverage issues related to a New Mexico personal injury claim.

Alysan Boothe Collins
Albuquerque Lawyer
www.CollinsAttorneys.com

The Albuquerque Journal had an interesting article last week regarding the refusal of some stores to sell alcohol to drivers with interlock licenses. This seems to be an obvious tool for the reduction of DWI/DUI related auto accidents. Though there are a few vendors that have adopted the policy, most have not. The question arises why more do not adopt the policy of refusing the sale of alcohol to DWI/DUI offenders on interlock drivers licenses.

Drivers arrested for DWI/DUI face automatic license revocation by New Mexico Motor Vehicles Division. In addition, the courts impose a separate and independent license revocation following a criminal conviction for DWI/DUI. Drivers with revoked licenses due to DWI/DUI arrests or convictions must obtain a special interlock license and install an ignition interlock device on their vehicle. Driving in violation of these terms carries up to one year in jail.

The owner of Albuquerque's Jubilation Wine & Spirits was quoted in the Albuquerque Journal article as saying that he is refusing the sale of alcohol to those with interlock licenses to do his part in helping to keep drunk drivers off the road. This is certainly admirable on his part and it is unfortunate that more store owners do not take the same position. There is no law that prohibits the sale of alcohol to drivers with interlock licenses. Does the store have a duty to keep drunk drivers off the road despite the lack of law to that effect? It seems that they may under simple dram shop liability theories.

As part of every DWI/DUI charge, there are conditions of release that prohibit drinking and driving. This seems to go without saying. There is also the condition that the defendant consume no alcohol at all while the case is pending. Likewise, upon conviction, the same prohibition against the consumption of alcohol applies throughout probation.

DWI/DUI drivers cannot legally use alcohol so they certainly have no business purchasing it. There is no good reason to allow the sale of alcohol to drivers with interlock licenses. The sale of alcohol to a person known to have a problem with drinking and driving, who clearly as a term of his conditions of release or probation is prohibited by court order from using alcohol, creates a plain threat to the safety of the driving public.

Jubilation is on the right track. Others who fail to follow the lead may do so at their peril. Dram shop liability laws provide a very good model for holding irresponsible store owners liable for damages and harm caused as a result of serving up alcohol to those known to be a threat to the public. A bar cannot sell alcohol to someone that is already intoxicated because this poses a threat to public safety. Does the same rationale not apply to selling alcohol to DWI/DUI offenders currently under driving restrictions due to the danger they pose to the public?

There are two approaches to attacking DWI/DUI. First and most obviously, the drunken drivers must be held accountable. Secondly, the source of the alcohol can be addressed. The State has not seen fit to prohibit the sale of alcohol to DWI/DUI offenders. It seems only a matter of time before personal injury lawsuits are filed against alcohol vendors for these irresponsible and indefensible practices that will inevitably at some point lead to tragedy. Perhaps these lawsuits will help to reduce the number of DWI/DUI drivers on New Mexico roads.

www.CollinsAttorneys.com

President Obama has announced sweeping mine safety initiatives in response to the recent West Virginia mining disaster in which 29 miners were killed. This is all well and good, but will it have any effect on the profit-driven corporations that run these mines? Sadly, the answer is probably no.

Massey Energy, the company that runs the Upper Big Branch mine where the recent tragedy occurred, was issued 515 citations in 2009 for that mine alone. There were already 124 citations against Massey Energy for Upper Big Branch mine in 2010. Over the last 5 years, Massey has been fined over $7 million for safety violations. Of course, they fight these tooth and nail and have paid only $2.3 million. Massey Energy, and other like-minded mining operators, seem to take the approach that they will fight every nickel of fines, dragging these cases out for years. All the while, they continue to rack up safety violations jeopardizing the lives of their workers.

Let's say for argument that Massey was forced to pay the full $7 million in fines. Would that change their safety practices? Take a look at the numbers and judge for yourself. Massey Energy reportedly had 2009 revenue of $583.9 million, down from previous year's revenue of $661.28 million. It is also reported that Massey Energy CEO Don Blankenship made somewhere in the vicinity of $19 million in 2008. It doesn't take a math genius to recognize that these paltry fines are not going to alter the profit driven decisions of Massey Energy or any other corporate actor.

What is a miner's life worth? Is a mine worker's life worth the investment in safety necessary to prevent the avoidable tragedies that occur far too often in mines? How about 29 workers? Apparently, the answer is no. This is quite obvious when one looks at the safety record of Massey Energy. The profit equation must be altered.

What's the answer? President Obama is certainly on the right track but there needs to be more. These companies must pay the price for reckless safety practices that jeopardize their workers. I am confident they will, but not through the fines envisioned by the new wave of safety inspections. These paltry fines have had and will have no affect companies like Massey Energy that place profitability before the safety of their workers.

Instead, the real price will come from the personal injury lawsuits sure to come in the next several months. And when they do, the Tort Reformers will cry foul that the greedy trial lawyers are simply taking advantage of a tragic situation. They will make these arguments knowing full well that these lawsuits carrying significant compensatory and punitive damage awards will provide the only real incentive for corporate change. Changing the profit equation to include possible massive damage awards is the only thing that will get their attention. And it is the only way to avoid future tragedies like the Upper Big Branch mine disaster.

www.CollinsAttorneys.com

Corporate defendants in personal injury lawsuits can be extremely uncooperative and evasive. After all, payment of claims does not fit within their profit model. In trucking accident cases, the level of obstruction will on occasion rise to the level of outright dishonesty and deceit. This is a problem on a national level and New Mexico is not immune to these abusive practices.

In trucking accident cases, the trucking company and its insurance carrier send in their investigative teams immediately. This would appear to be sound corporate responsibility. They call these their "Go Teams" and their mission is anything but responsible.

The Go Teams consist of investigators, accident reconstructionists and of course insurance defense attorneys. From the very beginning, the Go Teams are focused on defending any possible personal injury lawsuit to come. The entire investigation is geared toward defending the lawsuit. Understanding that the insurance company is leading the charge, this is not surprising. It almost too obvious to say that the first instincts of the insurance companies is to deny liability to avoid their financial responsibility for damages to the public they are charged with protecting.

The Go Team will often neglect to identify or obtain statements from witnesses adverse to their defense. Likewise they will often ignore evidence that does not support their position which instinctively is to deny responsibility for the accident. Instead, they will focus only on those witnesses and evidence that supports their position. These investigations are not about bringing the facts to the surface but about defending the claim.

Trucking accidents generally involved very serious injuries or death to the unfortunate drivers on the other end of the collision. A trucking accident, by virtue of simple physics, are typically far more serious that the run of the mill auto accident. A very high percentage of these accidents involves fatalities. Unfortunately, the severely injured or dead are in no position to conduct an on site investigation of their own at the time of the accident. As a result, it is very important to collect as much information as possible as soon as possible after the accident. This is often left to the family, friend or other loved ones of the injured or deceased victim of the trucking accident.

Due to the unique problems and challenges of trucking accident cases, it is important to get an attorney involved as early as possible. By early, I mean immediately. Evidence and witnesses have a way of disappearing for many reasons, some innocent, some not. Make no mistake, the evidence and witnesses not documented by the Go Teams is the evidence most important for a personal injury claim in the trucking accident case.

www.CollinsAttorneys.com

Medicaid liens can cause significant financial complications following settlement of a personal injury lawsuit. There are significant penalties for failure to properly account for those liens out of settlement funds. It is important that the Medicaid liens be addressed and satisfied with both New Mexico Human Services Department (HSD) and Center for Medicare and Medicaid Services (CMS) prior to distribution of personal injury settlement funds. It is equally important to the injured person that Medicaid not be overcompensated for their liens.

Medicaid through HSD and CMS is quite serious about collecting on its liens. In fact, Medicaid will on occasion assert liens beyond what it is legally mandated. This overstatement of its lien is typically the result of some confusion in the law regarding Medicaid reimbursement. This confusion over the Medicaid's rights to reimbursement can be quite costly if not addressed properly.

In most cases, Medicaid is very reasonable in addressing liens so long as the liens are addressed in a timely manner prior to settlement of personal injury claims. However, as a result of misinterpretations of the law, HSD in particular has been known to demand full recovery of all medical expenses advanced by Medicaid. In fact, Medicaid is not necessarily entitled to the full reimbursement of all Medicaid advanced medical expenses. This is particularly true in cases involving serious personal injuries.

Medicaid is entitled only to the recovery of liens associated with medical expenses. In a personal injury lawsuit, particularly in cases with serious injuries, the settlement or award typically includes a wide range of damages including lost wages, loss of consortium, loss of household services, permanent injury and disfigurement, pain and suffering and punitive damages. These are entirely distinct from the damages awarded for medical expenses.

Medicaid is not allowed to recover for any non-medical related damages. The reason for this is simple. As set forth in the 2006 United States Supreme Court case of Arkansas Department of Health and Human Services v. Ahlhorn, Medicaid may not "share in damages for which it has provided no compensation..." Medicaid provides no relief or support for damages other than medical expenses and therefore will not reap the benefit of any award for these other non-medical related damages.

It is not uncommon that the settlement or award does not specifically break down the allocation between medical damages and other non-medical damages. In case of a dispute over the breakdown, the parties can call on the court for a determination of the allocation between medical and non-medical damages. The Court will then apportion the damages between medical and non-medical damages based upon the injuries in the case. Medicaid will then reimbursed based upon the Court's apportionment of damages.

Medicaid issues are very complicated and it is important to seek the advice of an attorney prior to accepting any settlement. All liens, including Medicaid liens, should be negotiated prior to final settlement. Failure to negotiate liens in advance may have severe financial consequences for the injured person. This is particularly so in case of Medicaid liens for which failure to pay may result in significant fines and penalties.

www.CollinsAttorneys.com

It was reported this week in the New York Times that New York City has agreed to a class action settlement in the amount of $33 million for individuals subjected to illegal strip searches following misdemeanor arrests. The strip searches lled to a Section 1983 suit for the plain violation of the 4th Amendment prohibitions against unlawful search and seizure.

Interestingly, it was reported that this is the 3rd such settlement in the last 10 years that the City has settled cases for illegal strip searches. The first such settlement came in 2001 for $40 million. The second came in 2005 for several million. Now once again, the City has settled for $33 million for essentially the same pattern of conduct.

In the first wave of cases, the illegal searches were conducted prior to intake at the department of corrections. The practice was found to be unconstitutional under the 4th Amendment in Shain v. Ellison and formed the basis of the original settlements. In response, the City's department of corrections apparently determined that the unlawful searches would become lawful in the event that they were conducted following intake and admission into the correctional facilities. Another 100,000 people were, even after the first two rounds of settlements, subjected to the same unlawful strip searches.

The $33 million settlement seems like a very large settlement and it is in total. However, each individual subjected to the illegal searches will receive on average only $2000.00 for having been subjected to the humiliation of strip searches which included cavity searches of both men and women, including menstruating women, despite the lack of any reasonable suspicion that the detainees carried unlawful weapons, drugs or other illegal contraband on their bodies. How much would you accept to be stripped nude and subjected to cavity searches for a minor infraction of the law?

In light of the financial and budgetary crises facing New York City, why might it have agreed to such a large settlement? Clearly, the compensatory damages alone for the 100,000 individuals subjected to the barbaric, inhumane and unconstitutional strip searches could have easily exceeded $33 million at trial. In addition, the City was facing possible punitive damages for the clear lack of effect the prior lawsuits had on the City's behavior. Punitive damages are intended to both punish and deter. In fact, the most valuable role that punitive damages serve for society is to deter future illegal, dangerous or reckless practices of both the defendant and others. It is hard to imagine a better case for punitive damages than here where the City, despite two prior class action lawsuits and settlements, had failed to change its policies regarding strip searches.

The lawsuit and the settlement is likely to cause a flood of ranting from the tort reform movement. When you hear these, keep in mind that those subject to the illegal searches had been charged with a vast array of misdemeanors including child support violations, petty shoplifting, jumping a subway turnstile, petty marijuana possession, and trespassing to name a few. Of course, tort reformers will find a way to justify the illegal search and seizures, or in the alternative, try to argue that such suits serve no useful purpose other than enriching trial attorneys while depleting the public coffers of the good folks in the department of corrections who saw fit to engage in these practices.

Ask yourself in response to their arguments, which society you wish to live in, theirs or one that respects the United States Constitution, and the rights of individuals including those of your children, family and friends that in the tort reform world would most certainly fall prey to abusive practices of government, corporations, insurance companies, manufacturers or others who regularly fail to appreciate the rights, safety and welfare of the public they serve.

www.CollinsAttorneys.com

It was announced last week that there has been a $657.5 million settlement to compensate around 10,000 workers harmed during the cleanup of Ground Zero in the 911 Terrorist Attack. Two obvious questions arise: Is it a fair settlement for the injured workers? Why the delay in settlement when the workers were obviously harmed during the cleanup?

The injured workers individual compensation will vary greatly depending on their injuries. Some will receive thousands while others may receive in excess of $1 million. Many of the injured workers have suffered severe and permanent physical injuries. Most of the injuries are respiratory in nature, the most common being asthma. Others have suffered from a variety of cancers, some of which have proven fatal.

There has never any doubt that these workers were injured as a result of the Ground Zero cleanup activities. In fact, the federal government set up a $1.1 billion dollar fund which was and remains available to handle these claims. So why did it take so long to settle these claims?

Plaintiff's trial lawyers get knocked around a lot in the media. They are an easy and popular target for politicians of every stripe. But what about the defense trial attorneys? It takes 2 to tango as they say.

The New York Times reported that the insurance company for the City of New York handling these claims, the WTC Captive Insurance Company, paid attorneys $200 million in legal fees to defend against these claims. The plaintiff's trial attorneys are already taking heat for their fees and the judge is looking at knocking them down by 50% or more. No such movement is afoot to reduce the $200 million paid to the insurance defense firm.

The plaintiff's firm was working purely on contingency, taking huge risks, with huge financial investment, and huge commitments of time with the possibility that they get nothing in case of a loss at trial. By contrast, the defense firm was able to accumulate $200 million in legal fees defending the indefensible knowing full well that the case would settle prior to trial. All this, while there was a $1.1 billion fund available to settle these claims.

So, again, why the delay in settlement of these obviously meritorious claims? Perhaps, as they say, the case was not ripe for settlement. It takes a long time to run up $200 million in defense attorney fees.

Is the settlement fair? Let's see. There were 10,000 injured workers. This would allow for about $65,700 per worker assuming the settlement is spread evenly among the workers which it is not. However, the settlement may be reduced to $575 million if more than 95% of the workers do not consent to the settlement. That knocks it down to $57,500 per worker. The defense attorneys will take $200 million for successfully dragging out the litigation for years. The $1.1 billion insurance fund is left with $442.5 million. The workers will continue to suffer from their injuries for the remainder of their lives.

In the coming weeks and months as the debate rages over the fairness of the suit, rest assured the focus of the debate for many will not be on the unjust denial and delay of the workers rightful claims, or the under-compensation of many of the more seriously injured workers, it will be on the fees earned by the plaintiffs' trial attorneys. When the debate arises, and it will, I hope some thoughtful commentators in their attack on plaintiff trial attorneys, will also consider the fact that the defense of the indefensible claim is often at the root of litigation. And most importantly, the question will be asked whether these workers can rest in knowing that they and their families will be justly compensated and their future medical needs will be met.

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Personal injury lawsuits can often take a very long time. They are often highly stressful on a marriage for a number of reasons. Many times, the injured person is in significant pain following an injury. This can cause a lot of marital friction. In addition, the injured person many times cannot work causing serious financial strain on the marriage. Finally, the injuries will on occasion severely interfere with the intimate relations of the couple. All these strains can lead to divorces in the middle of a personal injury lawsuit or soon thereafter.

The question that arises is whether the personal injury verdict or settlement is community property in New Mexico. The answer is partly yes, mostly no. A personal injury lawsuit results in compensation for damages associated with the individual's injuries. These damages include compensation for the physical injuries as well as the pain and suffering associated with those injuries. In a nutshell, compensation for physical injuries and pain and suffering are not community property. The damages are awarded to compensate the individual for injuries personal to the individual.

However, personal injury settlements also often include amounts for damages beyond the physical damages and pain and suffering. They typically will include damages for medical expenses (past and future) and lost earnings (past and future). These can be far more difficult to classify.

For medical expenses, the classification of the recovery is dependent upon the source of funds for those medical expenses. If the medial expenses were paid out of community funds, then the recovery for medical expenses is community property. However, if the medical expenses were paid from insurance, then the bulk of the recovery for medical expenses is not community property.

The calculation becomes more complex in the case of future medical expenses. Certainly, any medical expenses incurred after the marriage would be separate property. The issue would be complicated in a case where the divorce is pending, or not yet begun, at the time that future medical expenses are awarded. This would require a calculation of the separate portion of those medical expenses still remaining at the time of the divorce, whenever that might occur. This is something that would be addressed in a Marital Settlement Agreement in the property division, or by trial if necessary. It might require the assistance of an expert in accounting or annuities to properly classify the community portion of the settlement.

Lost income is accounted for in much the same way. Any income during the marriage is community property. Therefore, any losses of income accrue to the community. As such, compensation for these losses is also community property. Again, the real complication arises in considering future lost wages. In cases of serious personal injury, the future lost income may represent the vast majority of any settlement or verdict. This is particularly so when the injured person is no longer able to work at all. The calculation of future lost income can be somewhat complicated. In a nutshell , however, future lost earnings involves a calculation of the individual's expected future income over the remainder of his or her working life based upon a variety of factors that indicate income potential. The resulting figure is then amortized back to the present for the calculation of future lost wages.

Clearly, income earned following a divorce is separate property. Income following a legal separation is also separate. Again, the timing of the divorce is critical. If the divorce occurs prior to the final verdict or settlement, then future lost income is clearly separate property and not an issue. If the divorce occurs following the verdict or settlement, then the lost wages will be apportioned according to the date of divorce.

Other complications occur as well. In many cases, the personal injury funds end up getting commingled with other community property such as home improvement projects. This sort of commingling can seriously complicate the allocation of the personal injury verdict or settlement between community and separate property.

The bottom line is that anyone involved in personal injury litigation should consider these issues very carefully if the marriage is on the rocks. The issues can become quite complicated and convoluted. Consultation with an attorney, both family law and personal injury, would be well advised to avoid any possible unpleasant surprises in the division of the verdict or settlement as community property.

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