New Mexico Injury Attorney Blog

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

Businesses often wine and dine clients and potential clients for business development and marketing. The wining part of the equation will on occasion lead to some pretty disastrous consequences. The recent New Mexico Supreme Court case of Delfino v. Griffo addressed the responsibility for these consequences under the state's liquor liability laws (otherwise known as dram shop laws).

New Mexico's dram shop liability laws have been long established. Under the dram shop provisions of the Liquor Liability Act, restaurants, bars, hotels and the like have routinely been held responsible for injuries and other damages resulting from over serving patrons whuch often come in the form of DWI auto accidents. The Act also addresses social hosts such as individuals serving alcohol in their homes. The Delfino case stretched the definition of "social host" to include businesses that entertain clients or associates with alcohol.

Delfino involved several pharmaceutical representatives who wined and dined Alicia Gonzales, a female employee of doctor's office, for 8 hours jumping from one bar and restaurant to the next as the Ms. Gonzales became more and more intoxicated. In the end, they gave her a pat on the back, put her in her car and sent her off to collide with a family resulting in the wrongful death of a seven year old boy and badly injuring the other occupants in the car.

The defendant pharmaceutical companies and their employees all claimed and successfully argued at the district court level that the definition of "social host" applied only to the service of alcohol in private settings. The district court agreed that "social host" could not apply to alcohol served in a liquor establishment. Effectively, the district court would have limited liability to the bars and servers of alcohol despite the true source and purpose of the alcohol.

The New Mexico Supreme Court disagreed following the law in numerous other states that hold liable not only the server of alcohol but also the person or in this case the company representatives who purchase the alcohol. The Court stated "We conclude that the Liquor Liability Act permits a cause of action against a social host who recklessly provides alcohol to a guest when the alcohol is consumed in a licensed establishment."

The Court agreed with the plaintiff's argument that these settings give "special control over their target business related guest..." In other words, the whole point of the exercise is to get the person intoxicated which in this case was quite successful. Ms. Gonzales got in her car over twice the legal limit of alcohol and 14 minutes later killed a young child.

The Delfino case is remarkable as much for the ruling that holds businesses and corporations responsible for long established and dangerous marketing practices as for the fact that each and every one of the three corporate pharmaceutical companies and their employees attempted and were first successful at evading completely their responsibility for the tragedy caused by those practices.

This evasion of responsibility for harms to the innocent is repeated time and time again by corporations each and every day, and as often as not, they are successful. And for holding them responsible, New Mexico has been labeled a judicial hellhole by the U.S. Chamber of Commerce and the American Tort Reform Association. That should tell you all you need to know about corporate responsibility.

Collins & Collins, P.C.
Albuquerque Attorneys

The basis behind the immunity for ER doctors in Texas (and other states following suit) is that medical malpractice claims have made it difficult to attract doctors to emergency rooms across Texas. It is not clear if the objective is to attract competent doctors.

What might be expected for the level of care in emergency rooms as ER doctors are given immunity from their negligent acts? Those doctors that cannot or will not practice medicine safely and competently may well be attracted to the ER. This serves neither the medical profession or the patient. Neither does it serve the healthcare system or taxpaying public as a whole.

The brunt of any negligence leading to serious and long-lasting injury to patients will be borne by Medicaid, Medicare and Social Security Disability. The costs of ER negligence will simply be shifted from the doctor, the hospital and most importantly their insurance carrier to the public at large.

Rather than raise the standards across the medical profession and encourage all doctors to meet higher standards of patient safety, Texas and others have chosen to create a safe haven for those doctors who cannot or will not meet the minimum levels of professional competence.

In the abstract, medical malpractice reform sounds plausible, almost necessary. In practice, these types of measures create unacceptable risks to patients and the public. They will also rightfully undermine the public's confidence in the medical profession. After all, why would a doctor need immunity to protect the doctor from his or her own negligence and incompetence?

It would perhaps not be so bad if Texas were alone in pushing these measures. But many other states, including New Mexico have proposed similar measures. In fact, New Mexico House Bill 372 was introduced this session to give immunity to emergency responders for all but gross negligence.

Rest assured, the future will bring more expansive bills to take the immunity from the scene of the accident through the ER. Once that is done, it will not be long before there will be bills suggesting industry wide immunity from medical malpractice claims. Many states have already placed severely inadequate caps on medical malpractice lawsuits.

Be safe out there! An accident may be the least of your worries. Your life and family may be at risk. But you should can take comfort in knowing your doctor, the hospital, their insurance carriers and all of their respective incomes will be fully protected. And in the end, isn't that what matters most?

Collins & Collins, P.C.
Albuquerque Attorneys

As the New Mexico Legislature considers making texting while driving a crime through House Bill 197, the auto industry ramps up the technology to allow drivers to do just that. And much, much more!

Ford in particular seems to be leading the way on mobile communications technology but others will surely follow. Ford Sync will allow drivers to sync up with all their communications and social media apps. Drivers will be able to check their texts messages, email, calendars, and newsfeeds. Presumably, there will be the ability to respond as well including updating the driver's schedule.

With each and every new feature will come new and dangerously escalating levels of distraction. Long gone are the days when the worst driving distractions were lost french fries and lipstick. Now all the frustration and confusion of the smartphone, the computer, cable television, channel surfing, social media and more will be brought to the dashboard of our and our fellow driver's cars.

Rest assured, these features will not come cheap. Auto manufacturers are not, or least their mission is not in the business of losing money. They will profit at the expense of the safety of drivers. Unfortunately, those that choose not to jump at this technology will still be exposed to the hazards of those that do.

In the end, the auto industry will make money. And with will surely be a significant rise in auto accidents caused by the distractions, they will scream for tort reform and liability limits when cars start piling up on our roads. They will scream for market freedom to allow drivers to adapt the technology and the right of industry to profit from the technology. Some may both support auto industry's right to profit with the technology while also making it a crime to use it.

On the other hand will be those hapless drivers who thought the technology was safe and legal. It was all built right into the dashboard for goodness sake? It will be those same hapless drivers who at best are charged criminally for their behavior and at worst endanger their own lives and the lives of others as they twitter their way down the road.

Collins & Collins, P.C.
Albuquerque Attorneys

The argument for medical malpractice reform centers around the high costs of medical malpractice insurance premiums associated with frivolous lawsuits. To support this argument, there was first the creation of the myth of frivolous medical malpractice lawsuits. To bring the argument home, an additional myth was created.

The second myth is that a reduction in medical malpractice litigation will bring down the medical malpractice insurance premiums for doctors. In fact, the number of medical malpractice lawsuits has been in sharp decline over the last ten years. Medical malpractice claims are brought to successful conclusion at trial in about 3% of claims.

Logic would dictate that doctors should be seeing significant savings in medical malpractice insurance premiums. These savings would then be passed on to patients and taxpayers through lower costs of medical care. Lets not hold our breath as we wait for the insurance industry to pass these savings on.

The point is seen most clearly in California where there state regulators are investigating dramatically inflated premiums. In an aptly name article "Calif regulator: Malpractice insurance too pricey" from the Silicon Valley Mercury News, there were some interesting but not too surprising findings on the topic.

The article states that on average, California insurers pay out around 23% of premiums for claims. This seems like a pretty respectable profit, perhaps even a little high. Medical malpractice insurance carriers on the other hand cannot live with a meager 400% margin. According to the article, the largest medical malpractice carrier, The Doctors Company, spends only 10% of premiums on claims. Some other providers pay as little as 2% of premiums on claims.

Where do savings from the highly successful 30 year Tort Reform campaign go? According to California regulators, they certainly do not go to doctors, patients or taxpayers. They go entirely to the insurance industry, which really was the point all along.

You have to hand it to the insurance industry. Its public relations and marketing efforts at distorting the reality of medical malpractice costs are remarkable. Its business model is beyond compare. After all, who can question the business savvy of an industry working off 90-98% margins while successfully crying hardship and distress every dollar of profit along the way.

Collins & Collins, P.C.
Albuquerque Attorneys

Medical malpractice reform is all the rage in politics these days. President Obama even seems to have jumped on the bandwagon. Many states are lining up to pass their own versions of medical malpractice caps under the guise of protecting doctors and patients.

The reality is that medical malpractice lawsuits have been on the decline for many years. In addition, those that are taken to trial have a very low success rate. There simply is no problem with runaway medical malpractice jury verdicts in the U.S. The threat of frivolous medical malpractice lawsuits is pure myth.

On the other hand, there is a very real problem with medical malpractice. It is estimated that up to 98,000 patients die each year from medical malpractice. That is almost twice the number of U.S. soldier deaths during the Vietnam War. There are countless others who survive medical malpractice with horrible and permanent injuries.

One such instance was reported by the Texas Tribune where Emergency Room physicians and staff failed to treat a woman for her very well documented and extremely serious vascular clotting problem. The woman was sent home with a diagnosis of bilateral leg pain. Due to the failure to treat the formerly diagnosed problems, the woman lost both her legs.

In addition to very low caps on medical malpractice claims, Texas has seen fit to give immunity against medical malpractice claims to Emergency Room doctors except in cases of "willful and wanton" behavior. In other words, a patient must basically prove intentional conduct. This is an impossible standard making it near impossible now for patients to recover for what amounts to gross negligence on the part of emergency room doctors.

The potential problem is made most evident in a horribly tragic case reported last week by Fox 40 in Sacramento. In that case, the parents of a two year old girl took her to a Sacramento Emergency Room for treatment for a persistent fever, skin discoloration and weakness. The parents waited 5 hours in the Emergency Room begging and pleading with doctors to see their little girl as her condition deteriorated before their eyes. Their pleas were ignored. As a result, streptococcus A bacteria ravaged her body necessitating the amputation of both feet, her left hand and part of her right hand. Streptococcus A is both common and easily treatable. This tragedy could have been avoided with even slight attention to the little girl or her parents.

Anyone who has ever been to an Emergency Room will understand the implications of providing immunity to Emergency Room doctors. There is the common cry that medical malpractice causes doctors to undertake unnecessary and expensive testing to protect against lawsuits. Both these cases illustrate the opposite. In each case, a little routine testing and attention would have saved these patients from amputations. Now states, Texas in particular, are moving toward a model where there is no pressure at all on doctors to behave professionally and competently leaving all of us at risk each time we seek medical attention.

Voters should keep this reality in mind as cynical and opportunistic politicians seek to gain advantage by touting medical malpractice reform. Keep in mind the two year old girl who now faces a life as a quadruple amputee. Perhaps this is not enough so consider yourself or your family in need of urgent medical services at the ER and whether you believe it is prudent to have a system where doctors and hospitals are not held accountable for their actions.

Then ask yourself who the caps and immunity are meant to serve? It is certainly not the taxpaying public who will ultimately bear the costs of caring for those injured by medical malpractice through Medicare, Medicaid, Social Security Disability and other programs while those truly responsible get a pass.

Collins & Collins, P.C.
Albuquerque Attorneys

The contingency fee arrangement plays a pivotal role in allowing personal injury plaintiffs access to the courthouse. In fact, without contingency fees, injured persons would for the most part have absolutely no recourse for their injuries and damages.

Of course this is what defendants would like to see. This explains the unrelenting attacks on trial lawyers by insurance companies, the Tort Reform movement, the U.S. Chamber of Commerce, and a long list of so-called small business advocacy groups.

The arguments have been so persistent and so loud for so long that many have taken their truth for granted. In fact, the arguments for tort reform and personal injury liability caps are based largely on myth. These myths were hatched and nurtured by these groups who represent corporate America and the insurance industry. The goal is maximize corporate and insurance industry profits with little regard for the safety of the public. In short, the goal is to keep injured persons out of court.

Among the greatest myths, and one that is particularly popular even among the public, is that the greed of trial lawyers is draining small business. Because the myths and misrepresentations are so numerous and profound, it is really hard to rank them in order of deception. However, this myth ranks at or near the top.

The focus of the "greed" argument has been on the contingency fee arrangement. Remarkably, the very conservative Fourth Circuit Court of Appeals shot down this argument in the 2010 case of Pellegrin v. National Union Fire Insurance. The case involved a $18 million auto accident settlement on behalf of Mark Pellegrin who suffered severe and permanent brain injuries, and quadriplegia. His injuries were so great that he can communicate only through facial expressions. He will be totally dependent for life upon the care of others for even basic necessities such as bathing and feeding.

Liability was hard fought by the insurance companies. According to the two plaintiff's attorneys, permanent, each had spent over 1000 hours of time on the case. There was a standard one-third contingency fee arrangement. Over the strong objections of the plaintiff's father and guardian, the district court reduced the fee to a mere 3%.

The plaintiff's were forced to appeal to the 4th Circuit Court of Appeals. The 4th Circuit is notoriously conservative and the plaintiffs were rightfully extremely concerned. In addition, Public Justice became involved fearing that the 4th Circuit would use the case as a platform for a full frontal assault to the contingency fee arrangement.

To the surprise of all on the plaintiff's side, the 4th Circuit reversed the district court's ruling. The Court repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Court noted that this case in particular illustrates the reality that an injured individual would have absolutely no recourse for his or her injuries in a case like this. Clearly, there are very few if any other than corporate plaintiffs that would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

Of course, this is well known to the Tort Reform movement. In their perfect world, the courts would be a playground for only the rich and powerful. And perhaps most importantly for all those skeptics out there, the millions of dollars of lifetime medical care for Mr. Pellegrin and others like him would be left to the taxpayer.

Collins & Collins, P.C.
Albuquerque Attorneys

The Food and Drug Administration has unleashed a new tool for ensuring the regulation of foods and drugs. The FDA has begun using the "Park Doctrine" for the imposition of criminal sanctions against pharmaceutical companies for violations of FDA regulations.

The FDA is targeting the illegal promotion of products for unapproved uses. The practice is known as off-label marketing and is fairly widespread. The FDA has brought back the Park Doctrine after years of dormancy with the realization that civil penalties, no matter how steep, seem to have no deterrent effect on the practice.

The 1970's Supreme Court case of United States v. Park ruled that company executives may be held criminally liable for willful violations of FDA regulations. The criminal penalties typically include fines. However, the FDA has expressed the intention to also seek jail time for those executives responsible for the illegal acts.

The FDA recognizes that the profit motive overcomes the threat of fines, whether criminal or civil. The threat of actual prison time is hoped to be more of a deterrent. Off-label marketing is clearly profit driven and until the profit equation is tipped in favor of public safety, the practice will continue.

These practices are both widespread and widely accepted by pharmaceutical companies and doctors alike. There are numerous ongoing lawsuits, criminal cases and criminal investigations related to these practices. It remains to be seen whether the FDA will hold true to its threat of jail time for guilty executives. It also remains to be seen whether even a threat of a little jail time will tip the profit loss calculation sufficiently for these folks to stop skirting the law.

These cases are interesting for a number of reasons. First and foremost these practices risk the health and safety of patients. Related to this is the fact that both medical industry and the pharmaceutical industry are among the strongest proponents of caps on personal liability awards. They argue that it is trial lawyers that harm the public and threaten public health.

Even President Obama has jumped on the Tort Reform bandwagon suggesting support for medical malpractice caps. There is no disputing that medical malpractice is on the rise, while actual successful medical malpractice claims are on the decline. Neither is there a dispute that wrongful prescription of drugs for financial gain is commonplace. Finally, there is absolutely no disputing that medical malpractice and pharmaceutical company off-label marketing harm the public. So why the continued calls for personal injury liability caps?

Let's start over. It has become a widespread practice of pharmaceutical companies to actively market through financial incentives for cooperating doctors the use of their drugs beyond their FDA approved uses. The practice is called off-label marketing...

Collins & Collins, P.C.
Albuquerque Attorneys

The Associated Press reported that BP has finally settled up on a claim. That's one claim of the 91,000 claims outstanding. According to the report, the claim settled for $10 million. In fact, BP intervened on the part of the claimant to get the settlement approved by Kenneth Feinberg who is in charge of Gulf Coast Claims Facility.

One might assume that this act of generosity and corporate responsibility spells hope to the other 91,000 BP Gulf disaster victims. Not so fast. The settlement was with one of BP's corporate partners according to the Associated Press report. BP will not disclose the identity of the company who receives the $10 million settlement.

Remarkably, the settlement was not reviewed by Kenneth Feinberg. Instead, the settlement was reached between BP and its partner with the Gulf Coast Claims Facility simply signing off on it. Mr. Feinberg's law firm, whose website list among its clients such notable energy and chemicals firms as Exxon, Shell, Conoco, Dow and Dupont, has received $850,000 in fees to administer the fund and who is negotiating a new, and presumably even more financially favorable fee structure.

Those not in a business relationship with BP or the oil industry have fared far worse. About half of the 484,000 claims have been flat denied. There is an appellate review process. Of the 264 appeals processed so far, each and every one has been denied.

There is a bright side to the whole process. Qualified individual victims, which apparently is no easy hurdle, can opt for a quick settlement of $5000. Businesses can opt for a quick $25,000. Naturally, with these settlements, comes a full release from all claims both present and future. Lets see how these settlements turn out for the claimants in 10 years when both foreseen and unforeseen medical conditions begin to manifest.

In a nutshell, while individuals their families, and small businesses alike throughout the Gulf Coast are left with the choice of quick cheap settlement for financial survival, those corporations associated with BP will make out like bandits simply shifting the money from one pocket to another.

Corporations and Tort Reformers have long ago shown their disdain for individual plaintiffs and their lawyers. So it will come as no surprise to anybody when they begin attacking the individual victims and their families for their audacity in seeking compensation for their injuries.

It may come as a surprise, at least to the small businesses of the Gulf Coast, that no cavalry will arrive in their defense. The true colors of Tort Reform shine no more brightly than here. The small business victims along the Gulf Coast would do well not to hold their breath awaiting the advocacy of the U.S. Chamber of Commerce or the many so-called "Small Business" advocacy groups that constantly tout Tort Reform.

Instead, they should brace themselves for the loud and hollow cry for the protection of small business as the suits for individual victims and their families move through the litigation process. These cries will grow louder and louder as the litigation proceeds. There will be no mention of the true small businesses toppling by the hundreds.

Collins & Collins, P.C.
Albuquerque Attorneys

Nursing homes are big business. With big business comes big profits. To maximize these profits, it seems that nursing home companies will find every possible opportunity to cut costs. There are many ways to cut costs in a business. Unfortunately, cost cutting is rarely consistent with good nursing home care.

In a nursing home, among the best available options is cutting staff. For profit nursing homes carry staff at much reduced levels compared to non-profit nursing homes. In fact, it is estimated that for profit nursing home have an average of 32% fewer nurses that non-profit nursing homes.

It seems the best way to reduce nursing home staff is to reduce the care necessary for nursing home residents. If the residents are easy to manage, there is much less effort required on the part of the staff. More compliant residents means fewer staff.

As it turns out, the best way to achieve compliance is by drugging the resident. The drugging of nursing home residents for purposes of management has been termed chemical restraint. In other words, if they don't leave their rooms, they can't give a staff much trouble.

Numerous studies have been conducted finding that as high as 80% of patients are placed on psychoactive drugs. In a Florida study, 71% of new patients were placed on psychoactive drugs within 3 months of admission. Most had no prior psychiatric diagnosis prior to admission to the nursing home. In many cases both in Florida and beyond, patients are placed on multiple drugs, some with dangerous interactions.

In at least one nursing home, the so-called psychiatric condition for which the drugs were necessary was complaints about the resident's care. In many cases, the drugs are given without the prescription of a physician. And when the resident refuses the medication, the staff will force the resident to take it.

One might ask, other than the unethical and sometimes forced medication of residents for purposes of maximizing profits, how are the for profit nursing home companies doing otherwise in terms of patient care? Not so good as it turns out. For profit nursing home facilities have almost 50% greater deficiencies in care than do their non-profit counterparts. Many move in and out of compliance, correcting problems long enough to avoid fines only to have the problems quickly resurface.

With the privatization of nursing homes and the increased emphasis on profits, cases of "immediate jeopardy" where violations were likely to cause serious injury or death rose by 22%. Naturally, among the strongest proponents of tort reform is the nursing home industry. The typical argument is that profit motives will increase the standard of care weeding out the bad actors through competitive market forces.

These arguments might carry more weight if the standard of care were not in free fall as opportunistic firms enter the industry with the expectation of higher and higher profits from one year to the next and one patient to the next. There are many good nursing home facilities. There are many that truly care for the welfare of their patients. These are not the ones that need protection from medical malpractice caps. It is the egregious offenders that need those protections and it is those offenders to whom we can least afford to provide them.

Collins & Collins, P.C.
Albuquerque Attorneys

It seems that caps on medical malpractice claims are used for political capital by every stripe of politician. Most every political campaign will involve a call for medical malpractice caps even if only by token gesture. Even President Obama threw in a call for caps almost as an obligatory gesture to the crowd during his State of the Union speech. Naturally, everyone cheered enthusiastically.

It is unclear what they are cheering about. The cheering is particularly perplexing coming from the Tea Party. The fact is that medical malpractice caps, or caps on any personal injury claim, shifts the costs of negligence and wrongdoing to the taxpayer from the doctor, hospital, and most importantly the insurance company. This is of course by design.

Hot Coffee, the movie is premiering at Sundance Film Festival. The movie documents the gross mischaracterization of the McDonald's hot coffee case by the U.S. Chamber of Commerce and the Tort Reform movement to basically deny normal folks from access to the courts. It does not stop there, it documents the costs of Tort Reform to taxpayers with an emphasis on medical malpractice liability caps.

The movie documents one particularly sad case of gross medical malpractice that led to cerebral palsy of a newborn twin, Colin Gourley. The movie documents the devastating effect of the malpractice on Colin, his twin brother Connor, and the family. Though some in the political arena are not particularly empathetic toward the suffering of others, all those calling for deficit reduction might at least want to take note of the costs to taxpayers associated with the medical malpractice caps that led to an 80% reduction of the jury verdict for Colin.

It was estimated at trial that Colin's lifetime medical expenses for his cerebral palsy would be $12.4 million. The jury awarded $5.6 million to cover Colin's medical expenses. The Appellate Court knocked the verdict down to $1.2 million which included other damages as well. This leaves a gap of millions for the lifetime care of Colin.

One might ask, what about private health insurance? The family had health insurance. Mr. Gourley lost his job and his medical insurance. Once he gained employment again, he was able to apply for medical insurance for his family. Naturally, the insurance company denied coverage to Colin due to his preexisting injuries.

In sum, the insurance industry escapes financial responsibility for medical malpractice for which they charge astronomical premiums. Then at the other end, the industry escapes coverage for Colin through private medical insurance. The end result is that Colin will be a lifetime beneficiary of Medicaid and the insurance industry has effectively shifted their financial obligations, but not their profits, to the public. And Congress and the President cheer approvingly.

For more information on Hot Coffee, go to Democracy Now, where there is very good reporting on the movie as well as the Medical Malpractice Myth. Make no mistake, we have been duped by the Chamber of Commerce and the Insurance Industry. Judge for yourself once you know the true facts.

Collins & Collins, P.C.
Albuquerque Attorneys

A study from the New England Journal of Medicine shows that hospital safety is not improving. The study was conducted from 2002 to 2007 in North Carolina hospitals. Though limited to North Carolina, it was suggested that the findings were reflective of national trends.

The findings are troubling for a number of reasons. The study is the first large scale study of hospital safety since the 1999 study from the Institute of Medicine that found up to 98,000 deaths and over one million injuries occur each year in the United States as a result of medical errors. Apparently, these numbers have no improved nor have they been widely disputed.

The study was focused on North Carolina due to the state's hospitals high level of involvement in programs designed to improve patient safety compared to hospitals in other states. Despite North Carolina's emphasis on patient safety, the study found that 18% of all hospital patients suffered harm as a result of their medical care. Of those, over 63% were preventable. Many of these errors lead to serious injuries with 2.4% ending in the patient's death. Perhaps in light of North Carolina's emphasis on patient safety which is lacking elsewhere, it is generous to extrapolate the findings to the rest of the nation's hospitals.

Remarkably, the study found that many of the errors were the result of failures to implement proven safety measures, some of which would appear to be obvious. The study is perhaps most troubling in light of the political climate surrounding medical malpractice lawsuits and the continuing myth of the medical malpractice lawsuit crisis. Opportunistic politicians, the insurance industry, many in the medical profession, and of course the Tort Reform movement ignore the reality of medical negligence. Instead there is a continued pressure for caps on medical malpractice awards. There are even those that would ban them completely.

These arguments are meant to protect insurance company profits. They do nothing for the medical profession. After all, is denial of the problem beneficial to the medical community? They certainly do nothing to protect the public.

To put the dangers of medical care in perspective (up to 98,000 American deaths and over a million injuries each year), lets take a look at gun related deaths. During the entire Vietnam War from 1958 to 1973, there were around 58,000 American soldiers killed. Since March of 2003, there have been around 4500 American soldiers killed in Iraq. The Center for Disease Control found that in 2002, there were 30,242 firearm-related deaths in the United States which included 17,108 suicides, 12,129 homicides and 1,005 undetermined/unintentional firearm deaths. The 12,129 homicides included legal intervention and war.

Add it all up with two major wars and one year of all gun related deaths (intentional, military, law enforcement, suicidal, accidental) and hospitals are still more lethal to Americans. Keep these numbers in mind the next time your hear a politician decry the attack of trial lawyers on doctors. You might also keep it in mind before your next hospital visit. Then finally you might ask what kind of greed, cynicism and opportunism would motivate a politician, insurance company or talk show host to argue against the only real protection and compensation afforded patients when they are harmed.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the New York Times, bankers are jumping into the personal injury lawsuit business along with hedge funds and private investors. The list of those banking institutions embracing the much maligned personal injury trial lawyers for their own profit is noteworthy, if not surprising.

According to the New York Times, Counsel Financial of Buffalo is the largest such personal injury lawsuit finance company with $200 million in lawsuit financing loans outstanding. Counsel charges annual interest of 18% on the loans. Counsel is financed through Citigroup. Joining the ranks of Citigroup are Credit Suisse and Deutsche Bank among others. It is perhaps safe to assume that each is a card-carrying member of the United States Chamber of Commerce though I could find no membership rolls for the Chamber.

Why is this relevant? The US Chamber is the chief proponent of Tort Reform in the United States. The New York Times article cites Lisa A. Rickard of the Institute for Legal Reform, a creation of the United States Chamber of Commerce for the promotion of Tort Reform, "It sends shivers down the spines of general counsels all across the globe."

Apparently, many companies spurred on by the myths of lawsuit abuse created by the US Chamber and the Tort Reform movement fear that these lenders will go beyond mere financing and begin to solicit lawsuits. And why wouldn't they?

According the New York Times Article, Counsel made a profit of $11 million on a $35 million loan to help finance the ground zero worker lawsuit. With returns like that, more and more banks, many of whom are members of the Chamber and staunch supporters of Tort Reform will jump on the bandwagon.

It is estimated that there are one billion dollars in lawsuit loans outstanding at any given time. Of particular note is investment in medical malpractice cases and class action lawsuits. It is more than ironic following the recent election cycle where the US Chamber, along with its members, have perennially led the drum roll blaming trial lawyers for the strain on businesses of class action lawsuits and the constant harping about the mythological medical malpractice crisis.

In the true spirit of capitalism, Courts have ruled that it is not illegal for these financiers to drum up lawsuits themselves. These courts are not just from liberal jurisdictions like Massachusetts, but from Texas, South Carolina and Ohio who have led the way in medical malpractice limitations and caps among other Tort Reform style initiatives.

Of course, the costs of financing are carried by the plaintiff in the case of a victory at trial, and the lawyers in case of a loss. The creditors get paid either way. Most remarkable, the article cites numbers and cases showing that in many cases, the costs of financing resulted in net losses to the plaintiffs despite trial victories. In other cases where the cases were lost, lawyers were forced into bankruptcy.

The logic is clear. So long banks get paid, all is well in the world of Tort Reform. It seems almost inevitable that there will soon be attacks on the trial lawyers fees despite the high risks of litigation and their liability on the loans despite the outcome. This has already begun with attorneys being forced to carry the costs of the financing in the Ground Zero litigation. Rest assured, there will be no similar movement to limit the interest rates on these loans.

Read the story at New York Times

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

Research under the direction of Dr. Philip Stahel, M.D., a surgeon at Denver Health Medical Center, illustrates the magnitude and prevalence of major medical errors. Dr. Stahel and his colleagues analyzed 27,370 medical records drawn from a medical malpractice insurance company's database.

The insurance company from which the data was taken provides insurance for 6000 Colorado doctors. Though the data covered only Colorado medical providers, the findings are consistent with other studies on the issue of medical malpractice.

The study focused primarily on major or catastrophic medical errors defined as patient and/or surgical site mix-ups. The study found that these catastrophic errors constitute .05% of total medical errors. Dr. Stahel stated that the actual numbers are likely much higher.

The report from Dr. Stahel is reported by CNN Health and on Health.com. The CNN Report also quotes Peter Pronovost, MD, professor at Johns Hopkins University School of Medicine in Baltimore, who stated that 98,000 patients die each year in hospitals as a result of medical error and many more suffer lesser preventable harm. Health.com reports one study found that a random sampling of 100 hospital charts would on average find 40 errors.

Though the 98,000 figure relates to hospital deaths, many medical errors (up to one third) result from medical procedures conducted in the doctor's offices. In addition, many major operating room mistakes result from pre-surgical testing errors in the imaging and diagnostic procedures.

In short, medical error and medical malpractice is a very real problem. Not only is it a real problem, it is a pervasive problem potentially affecting each and every patient receiving medical care. This raises the question of why each and every election cycle comes with renewed attacks on trial lawyers and injured patients.

The insurance industry which is well aware of these numbers continues to lobby for caps on liability for medical malpractice. They do this as they continue to raise the malpractice insurance rates on doctors. They do this despite the fact that medical malpractice claims have declined significantly in recent years. The report from Dr. Stahel found that only 22% of the major medical errors found in his study resulted in lawsuits.

The bottom line is that patients harmed by undeniable medical error are barred from compensation while Doctors continue to pay skyrocketing medical malpractice insurance rates on claims that are rarely made. The insurance industry has successfully created a Medical Malpractice Myth that harms both patients and doctors. The insurance industry profits at the expense of both injured patients and doctors, crying foul all the way to the bank.

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

There has been a lot of interesting news of late on the BP Gulf Disaster. As you recall, BP came out with its public relations machine vowing to make things right just after the accident. I wonder how that's working out?

In the spirit of responsibility, the parties, the oil industry and their tort reform allies have fought tooth and nail to cap the liability of all responsible parties, not just BP. Currently, there is a $75 million cap on BP's liability. BP has set aside $20 billion presumably to cover all damages. However, BP has not yet clearly waived the $75 million cap on its liablity. Rest assured, BP will not part willingly with the $20 billion. The verdict is out on BP's ultimate outlay. However, it is pretty clear that $20 billion is insufficient to cover the actual damages to the Gulf, its residents, its businesses, and let's not forget the 11 dead workers and their families.

Transocean has been much bolder in its position seeking to keep its liability to a mere $25 million. This is remarkable in light of recent news of Transocean's safety issues at several of its other gulf wells. It is astonishing in light of the recent news that Transocean plans to cut benefits to its workers injured on the well to $25/day. Keep in mind these employees were earning $10,000 to $15,000 per month prior to the explosion. In the spirit of making everything right, Transocean has recovered over $400 million in insurance proceeds for the loss of its platform recording a gain of $267 million on the rig's policy.

Transocean benevolence is unassailable. After all, Transocean's says it so when president and CEO, Steven L. Newman, states that its "first commitment has always been and will continue to be the safety and well-being of our people." This would certainly explain the generous $25/day to its employees. It might in a roundabout way explain why they refuse to acknowledge injuries to its workers. Transocean will admit that only 17 were injured despite the fact that there are currently 60 worker lawsuits and that 9 Transocean employees counted among the 11 workers killed in the explosion. After all, if they were not injured then it really is best for them to get on with their lives and $25/day should do the trick!

Making a cameo appearance, and perhaps a leading role in the coming episodes, is Halliburton. from the beginning, Halliburton denied any responsbility for the rig explosion. The company has done everything, successfully it might be added, to distance itself from BP and the disaster. A new report from the presidential commission investigating the disaster has found that Halliburton knew that the cement mixture to seal the well was unstable. Despite the obvious dangers of a blowout to both the workers on the rig and to the environment, Halliburton used the mixture anyway. The result, 11 dead, many more very seriously injured, the Gulf laid to waste, and thousands along the Gulf financially ruined.

What can we expect in the future from BP, Transocean, Halliburton, the oil industry and advocates of Tort Reform? To answer that, we need only go to the Tort Reform playbook: Fight for liability limits. Fight every conceivable safety regulation. Fight even a temporary moratorium on deepwater wells to protect against future disasters. Fight for every last nickel to deprive the dead and injured workers of just compensation. Do not forget to vilify the victims with the British press laying the groundwork by referring to the victims of the BP Gulf disaster as "Spillionaires." And most importantly, attack the trial lawyers who would dare seek fair compensation for the victims.

All in all, it appears everything is going as planned.

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