New Mexico Injury Attorney Blog

Bullying has long been a problem in schools. The problem has been getting a lot of attention recently with some troubling new twists to an age old problem.

There was Tyler Clementi's suicide on September 22 following his roommate's live streaming of some very private moments on to the internet. The behavior of the roommate was atrocious and inexplicable. The suicide of a promising college student is shocking to say the least.

The case follows on the bullying related suicide of Phoebe Prince , a 15 year old high school student. There are countless other bullying related tragedies like these.

Perhaps, none is more shocking than the most recent suicide of a 10 year old girl. It is believed that her suicide was bullying related. The thought of a 10 year old committing suicide would be incomprehensible as a result of bullying if not for the fact that this was not the first such incident. In April of 2009, an eleven year old boy committed suicide as a result of bullying.

The bullying can range from psychological and emotional abuse to outright physical violence. The result is often the same. In response to the problem, 45 states have passed legislation addressing school bullying.

Much of the legislation is preventive in nature addressing education and awareness. Often, the legislation lacks any remedial measures for the victims of school bullying. However, as the culprits in the Phoebe Prince and Tyler Clementi cases have found, there are serious possible criminal consequences to the behavior. Criminal liability for the bullies does not address the culpability of the schools that often ignore or foster the bullying behavior.

The schools do have a responsibility for monitoring and preventing bullying behavior as many school systems have found through some sizable personal injury lawsuits. Schools, administrators, teachers and coaches cannot turn a blind eye to bullying. They have a duty to protect the students in their care.

This duty has never been more clearly breached than the case of the Las Vegas, New Mexico football program where numerous underclassmen were raped with broom handles as part of a sick and apparently tradition bound hazing ritual in the program. The students that committed the atrocities have since been convicted and sentenced to various terms of probation and jail.

The school, the district, the teachers and coaches that stood idly by as the crimes were committed will soon understand the depth of their responsibility. Unfortunately, this epiphany will come only as a result of the personal injury lawsuit filed against these folks.

Perhaps, these individuals and the school district do not read the press about the horrible consequences of school bullying. You can bet they will be reading the legal pleadings filed against them. It can only be hoped that other school officials across the country will do likewise. Clearly, many schools have failed to recognize and respond to the harm to their students. Hopefully, schools and school districts will take note of the huge costs of such negligence.

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

Premises liability claims often come in the form of slip and fall cases. These cases typically involve claims for damages against the property owner for injuries suffered while on the subject property. However, there are occasions when a claim may be brought for injuries suffered on adjacent property.

A common example of such a claim involves injuries that occur on sidewalks adjacent to the property in question. For example, a property owner would be liable for drainage of water from its property on to a city sidewalk if that water were to cause an accident. In New Mexico, this is not an uncommon set of circumstances. Often, property owners have sprinklers or other sources of water that drain onto sidewalks or streets causing ice hazards to pedestrian and vehicles alike. There are other occasions where stores, restaurants, or other businesses have water or other liquids that escape from their property on to pedestrian walkways. In these cases, and other cases where a dangerous condition is caused on an adjacent property by the activities of a property owner, the property owner is fully liable for any harm caused by his or her negligence.

The most common situation is codified in New Mexico Uniform Jury Instruction § UJI 13-1316 specifically addresses public sidewalks: "The [owner] [occupant] of property abutting a public sidewalk is under a duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the sidewalk."

If you are injured in such a situation, you or someone on your behalf should immediately collect as much evidence as possible. This would include getting the names, addresses and phone numbers of any witnesses. Even more important, you should get pictures of the accident site as soon after the accident as possible so that you can document the condition of the property at the time of the accident. This would include identifying and documenting the source of the water. As you might imagine, this task is made much more difficult in cases involving ice when pictures are taken later when the ice has already melted.

Failure to document the negligence and liability of the property owner at the time of the accident can make pursuit of these cases substantially more difficult and sometimes impossible due to the lack of evidence to establish the property owner's liability. In addition, public sidewalks may also raise Tort Claims issues against the local government. These claims require that a Tort Claims Notice be sent within 90 days of the accident. Failure to do so will bar the claim.

Due to the many possible complications associated with these types of cases, it is typically advisable to contact a New Mexico Injury Attorney as soon as possible after the accident.

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

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

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

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

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

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

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

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

www.CollinsAttorneys.com

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