New Mexico Injury Attorney Blog

Calculation of the Medicare set-aside in a personal injury action can be a long and tedious process. The law allows for a reasonable allocation for future medical expenses. Defining "reasonable" is anything but easy.

The set-aside calculation takes into consideration the patient's current condition, past medical treatment, future medical needs, life expectancy along with numerous other factors. Medicare may judge "reasonable" future medicals at a far higher amount than is suggested by the facts. An excessive set-aside coupled with the lien on past paid Medicare benefits may render a settlement or judgment worthless to the injured person as the fight for recovery is purely for the benefit of Medicare. This is particularly true in cases with catastrophic injuries and uninsured/underinsured or judgment proof defendants. There simply is not enough money to go around.

Worse still, the review and approval process can take months upon months to conclude. All the while, the statute of limitations is ticking along. The lengthy time necessary to conclude the review and approval can push a case that would otherwise settle into litigation. This of course places even greater costs on the injured person. Even then, Medicare holds the cards and they do not have to budge on their numbers. At some point, a rational plaintiff must decide whether litigation to pay Medicare and attorney fees is really worth the time and stress.

The bottom line is that the process with Medicare must begin early. Time is not really on your side in these cases. On the one hand there is Medicare and on the other the statute of limitations. The statute of limitations has a way of sneaking up on plaintiffs and many lawyers will not, and those that do should not, touch a case with these kinds of issues and short fuse on the statute of limitations.

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

In personal injury lawsuits against any governmental entity in New Mexico, the New Mexico Tort Claims Act requires that a Tort Claims Notice be sent to all possible governmental defendants within 90 days of the incident. This is a strict requirement and missing the 90 day deadline will bar the personal injury suit completely.

The contents of the notice are pretty straightforward. The Tort Claims Act simply requires that the entity be placed on notice of possible claims against it. The Act requires that the written notice state the time, place and circumstances of the loss or injury. In an abundance of caution, unless there is a good reason not to, we typically set forth all of the important details of the incident including date of the incident, the names and the parties responsible for our client's injuries, their titles or other relationship to the named entity, the location of the incident, a brief description of the incident and a description of our client's injuries.

The governmental entity to receive the notice is sometimes a little trickier to determine. You must first determine if a governmental entity is involved which is sometimes more difficult than it sounds. Once you have determined that a governmental entity is involved, the Act itself provides guidance on who should receive the notice in its language at NMSA §41-4-16:

"Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury."

It is important that you strictly follow the dictates of the Act. Failure to provide notice to the appropriate authority will bar your claim no matter how well-intentioned you were in delivering the notices to the wrong parties.

The Notice should be sent by certified mail return receipt requested so that you can verify that the Notice was sent and received. This is particularly important when the deadline is looming and any error or failed delivery could be fatal. Keep in mind also that certified mail takes significantly longer to deliver. If the deadline is immediate, like right now, then send the notice by email and fax and pony express if necessary to get the notice there by the close of business on the deadline date.

www.CollinsAttorneys.com

Personal injury lawsuits against governmental entities in New Mexico have surprisingly quick deadlines. These deadlines arise under the New Mexico Tort Claims Act. You should be aware of the Act's deadlines if you are suing a state, county or city governmental entity in New Mexico. Missing these deadlines even by a day will bar your personal injury claims.

Personal injury lawsuits covered by the New Mexico Tort Claims Act would include medical malpractice claims against government run medical providers such as the University of New Mexico. They would include suits against any state, county or municipal hospital or clinic. Also included would be suits involving city streets or transportation such as the City of Albuquerque for public transportation accidents or problems with the city streets or sidewalks. The Act would also cover suits against state, county or city law enforcement for civil rights claims or even auto accidents involving law enforcement. The range of these suits is very broad so it is important that you determine immediately if a governmental entity is involved.

If your personal injury claim involves any governmental entity whatsoever, then the New Mexico Tort Claims Act applies. Under the Tort Claims Act, the injured person, or his or her representative must send a Notice of Tort Claim to the appropriate entities within 90 days of the incident. It is important to note that a separate notice must be sent to each entity that may be a defendant in the lawsuit. This is a firm deadline and failure to send the notice within the 90 day period will bar your lawsuit completely.

In addition to the 90 day Tort Claims Notice requirement, the statute of limitations is shorter than the normal 3 year period for personal injury lawsuits against private non-governmental entities. In personal injury suits against governmental entities, the statute of limitations is only 2 years. Again, this is a firm deadline and failure to file a lawsuit within the 2 year period will bar your claims.

Most people injured at the hands of governmental entities such as those set forth above are unaware of the Tort Claims Act or its deadlines. Many injured persons miss the 90 day deadline before they even contact an attorney. Unfortunately, if this happens, there is very little an attorney can do for those folks except in very limited situations. Missing the deadline even by a single day will bar the claims.

Because these deadlines are very strictly enforced, you should immediately make arrangement to send out the Tort Claims Notice. You should contact an attorney for these purposes as soon after the accident as possible. Many wait until the 90 deadline is almost up before contacting an attorney. Many law firms, including this one, will be extremely reluctant to take a case with a looming tort claims deadline.

If you do not have an attorney for purposes of sending out the tort claims notices, you should send them yourself. Once the tort claims notice requirements have been met, you will have additional time to hire an attorney for the pursuit of your lawsuit. You need to make sure that the appropriate governmental entity or agency receives the notice. If there is any doubt as to the appropriate party, you should err on the side of caution sending tort claims notices to all possible governmental defendants.

www.CollinsAttorneys.com