New Mexico Injury Attorney Blog

Many nursing home contracts, which a new resident is required to sign, contain a binding arbitration clause. An arbitration agreement is a contract stating that, if a dispute arises, the parties will not file a lawsuit in a traditional court of law. Instead, with an arbitration agreement, the parties will submit their dispute to an arbitrator, which is a neutral third-party whose decision will bind the parties.

Arbitration provisions in any consumer setting rarely if ever favor the consumer. They are always to the advantage of the company. After all, why else would companies, particularly nursing homes, fight so hard to enforce them? In short, they are always one-sided. It is just a matter of when they go too far (which is quite far in light of recent United States Supreme Court case-law) that they are considered "unfairly" or "unreasonably" one-sided. Fortunately, in New Mexico, the Courts still look after consumers and will draw the line to protect them.

The New Mexico Court of Appeals once again reviewed the propriety of mandatory arbitration agreements for nursing home residents in Ruppelt v. Laurel Healthcare. In this case, the plaintiff's father was a resident in a nursing home when he died. The plaintiff alleged that the nursing home's negligence led to her father's death. When the plaintiff filed the nursing home negligence lawsuit, the nursing home sought to have the case dismissed relying on the arbitration provision in the admission contract.

If a binding arbitration agreement is enforceable, then a lawsuit is precluded. However, if the terms of a contract are unconscionable, the court may strike the unconscionable terms and refuse to enforce them. New Mexico Courts have in the past been quite hard on binding arbitration provisions in nursing home contracts placing the burden on the nursing home to prove the fairness of the provisions in Strausberg v. Laurel Healthcare Providers. The United States Supreme Court on the other hand completely cut the legs from this protection in Marmet Health Care Center v. Brown.

However, in the Ruppelt case, the New Mexico Court of Appeals has again put the burden on nursing homes. Specifically, in New Mexico, a contract clause may be deemed unconscionable if one party is forced to submit its claims to arbitration but allows the other party the option of filing a lawsuit in a traditional court of law.

In the Ruppelt case, the arbitration agreement was completely one-sided (as arbitration agreements almost always are). Under the agreement, disputes pertaining to collections and patient discharge could be brought via lawsuit in a traditional court of law while patient claims were forced to arbitration.

While either party could technically bring a lawsuit for collections or patient discharge disputes, it is very unlikely for a patient to bring such a lawsuit. On the other hand, collections issues and patient discharge disputes are among the most common types of lawsuits brought by nursing homes. In essence, the arbitration agreement forces a patient to bring his or her most likely dispute for negligent care in arbitration while allowing the nursing home to bring its most likely disputes in a court of law. For this, the court found that the provision was "unfairly one-sided."

By limiting the patient's access to the courts, while allowing free access for itself, the nursing home created an unconscionable arbitration agreement. When a contract clause is found to be unconscionable, the court then has the option to either simply void that term and enforce the remaining parts of the contract, or voiding the full agreement.

In this case, the clause allowing collections and patient discharge disputes to be brought in court was central to the arbitration agreement. Simply voiding all offending clauses might affect the central provisions of the agreement between the parties. Therefore, the entire arbitration agreement was invalidated by the Court.

Related Reading:
Nursing Home Mandatory Arbitration Provisions - Sign at Your Peril!
Mandatory Arbitration Ruling is Victory for Victims of Nursing Home Negligence and Abuse

Collins & Collins, P.C.
Albuquerque Attorneys

When a patient goes in for a medical procedure, he or she is handed numerous documents that must be signed prior to the procedure. These include a variety of disclaimers and warnings of risks related to the procedure. The risks and possible bad outcomes are often numerous and terrifying.

Indeed, upon reading some of these forms, one might reasonably ask how in the world some of the risks are inherent to the procedure. In fact, many of them are not but are added as boilerplate catchall provisions to try to cover not only inherent risks but many other bad outcomes as well. Yet the procedure is necessary so the patient signs.

Throughout the stack of disclaimers and warnings will be various acknowledgements and acceptance of the risks. All of this culminates with the signing by the patient of consent forms consenting to the procedure.

It is not unusual that the worst does occur. Sometimes the bad outcome is an inherent risk of the procedure. Clearly, there are many high risk procedures. And clearly, medicine is not perfect. However, that is not the issue in the case of most medical errors and medical negligence. In fact, it is not an issue of being perfect; it is an issue of competence, of meeting the standards of the medical profession.

Despite the widely accepted myth of the frivolous medical malpractice lawsuit, there is vast medical negligence. In a 1999 study from the Institute of Health, it was estimated that as many as 98,000 patients a year die from medical negligence making it the 6th leading cause of death at the time.

That's bad! What's worse is that since 1999, the problem has actually grown worse. In 2010, the Office of the Inspector General of the Department of Health and Human Services estimated the number of deaths from medical negligence at 180,000. The Inspector General found also that as many as 1 in 7 patients suffer injury as a result of medical error.

Knowing this will make those consent forms pretty frightening. However, rest assured that in New Mexico, all these disclaimers, warnings and consents will not excuse negligent medical care. In fact, there is a jury instruction that says exactly that.

New Mexico Uniform Jury Instruction 13-1105A entitled Consent No Excuse for Negligent Treatment states:

"The fact that a doctor communicates the inherent and potential hazards of a proposed [procedure] [treatment] does not necessarily mean that those hazards, should they arise, are not the result of negligence in performing the proposed [procedure] [treatment].

The fact that a patient expressly or impliedly consents to a proposed [procedure] [treatment] does not mean that the patient consents to the negligent performance of that [procedure] [treatment] and therefore does not prevent you from considering whether the [procedure] [treatment] was negligently performed.

The fact that a patient consents to an adequately performed [procedure] [treatment] does not excuse the doctor from negligence in choosing an unnecessary or contraindicated [procedure] [treatment]."

In short, an advice of risks and consent to medical treatment is not a waiver of a patient's right to competent medical care. It is not a free pass for the medical provider. The fact that the patient signed the consent forms will not prevent the patient (or his or her estate) from recovering for the personal injuries or wrongful death associated with medical negligence.

If you believe that you or a loved one has been harmed by medical negligence, it is important to seek the counsel of an experienced personal injury attorney right away. Medical malpractice claims in particular have many unique requirements and deadlines that must be met to protect a patient's rights to recovery.

Related Reading:
The Myth of the Frivolous Medical Malpractice Lawsuit
Are Guns Safer than Hospitals?
Medical Malpractice Claims Raise Unique Statute of Limitations Issues

Collins & Collins, P.C.
Albuquerque Attorneys

It goes without saying that workplace safety often hinges on the maintenance of equipment. That is certainly true in the oil and gas industry. One need only look at one of the worst oil and gas accidents in history, the 2010 Deepwater Horizon tragedy which apparently involved numerous equipment maintenance and failure issues. The explosion that occurred there killed 11 people and seriously injured 17 others. In addition to the injuries and fatalities there was also significant environmental damage along the Gulf Coast.

Unfortunately, this is not an isolated incident. According to the Bureau of Labor Statistics, about 600 oil field and rig workers were fatally injured on the job between 2002 and 2007--many due to various mechanical problems. Perhaps even more alarming is that the statistics also show that these jobs are getting more dangerous all the time. From 2002 to 2006 the number of deaths per year increased by approximately 70%, from 72 deaths in 2002 to 125 in 2006. These workplaces are extremely dangerous. According to estimates, the fatality rate among oil and gas workers is nearly eight times that for all workers in the United States.

Efforts at improving workplace safety must focus on equipment maintenance. Proper maintenance keeps the oil rigs and other equipment working as they should, without the chance of one-time blowouts or malfunctions that hurt those working in the vicinity. When maintenance is done improperly, or not at all, oil and gas workers are put in serious danger.

Unfortunately, productivity often determines when and how maintenance is performed. Irregular or nonexistent maintenance saves the oil and gas companies money. Productivity decreases when the equipment is shut down for maintenance. The profit-motive therefore makes it more likely that the industry will not be proactive in its safety measures. All too often this means that problems are only addressed after a worker has been seriously injured or killed. Even then, the problems may persist.

Following these tragedies, those involved may be able to seek compensation for their losses. There are many complexities and challenges with these cases beyond the obvious technical challenges of figuring out how and why an accident occurred. In New Mexico, the Worker's Compensation Act places strict limits on claims by employees (and their estates) that are injured or killed on the job.

The New Mexico Worker's Compensation Act provides an exclusive remedy for employees injured or killed on the job. In short, the employee is prevented from suing the employer for personal injury or wrongful death in all but the most outrageous situations. In short, the employer must more or less send the employee to certain death before the exclusive remedy protection is waived by the employer.

In these types of cases, where the injuries (if the worker survives at all) are typically very serious. The Worker's Compensation benefits do not come close to fully compensating a worker for very serious personal injuries or wrongful death. As such, the worker must identify a third party who is responsible or shares responsibility for the accident. In these types of cases, there is often no shortage of parties who share the blame due to the large number of contractors, subcontractors, equipment providers, manufacturers and the like.

If you or a loved one has been injured or killed in an oil or gas accident, it is important to seek the guidance of an experienced personal injury attorney to ensure that your rights are protected. There are strict deadlines associated with these cases so it is important not to delay. Missing a deadline will bar your claim completely.

Related Reading:
Oil and Gas Facilities Pose Significant Risks to the Public When Not Properly Maintained
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Employers Protected from Liability for Gross Negligence Toward Employee Safety

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, there are caps on both medical malpractice claims and claims against the government. These caps are highly detrimental to injured plaintiffs and they undermine the right to a jury guaranteed under the 7th Amendment of the U.S. Constitution. However, the caps are routinely upheld in New Mexico and beyond.

Most recently, in Lajeuenesse v. Board of Regents of the University of New Mexico, the New Mexico Supreme Court addressed the maximum liability of a government entity in a wrongful death action when there is one deceased victim and several beneficiaries.

Lajeuenesse was a wrongful death action brought by a man's estate based on negligent medical care by the University of New Mexico Hospital. The jury awarded the plaintiff's estate damages of $750,000. The defendants made a motion to reduce the damages, which the trial court granted, and the damages were reduced to $400,000 plus medical costs of $13,032. The trial court relied upon the language of the New Mexico Tort Claims Act, limiting recovery to $400,000.

The New Mexico Wrongful Death Act allows a family member, or other person close to the victim, to bring a lawsuit for a wrongful or negligent act that result in the death of the victim. In this case, the victim's spouse had already passed, so the Wrongful Death Act states that the monetary judgment should be distributed to the victim's children.

The New Mexico Tort Claims Act provides exceptions to the government's immunity from lawsuits. Pertinent to this case, the Tort Claims Act waives immunity for wrongful death caused by the negligence of public employees acting within the scope of their duties. However, the Tort Claims Act limits the liability of a government agency to $400,000 for any number of claims arising out of a single occurrence for all damages other than property damage and medical expenses, and $750,000 for all claims other than medical expenses arising out of a single occurrence.

The court first examined the interaction between Wrongful Death Act and the Tort Claims Act, to determine if this matter is a single claim or multiple claims, which would determine whether the damages were limited to $400,000 or $750,000.

The court first noted that the Tort Claims Act provides an exception to the government's liability for wrongful death cases. It then explained that the Wrongful Death Act provides for a personal representative to bring the lawsuit against the wrongful party. Then the Wrongful Death Act states that the damages award should be distributed to the deceased person's beneficiaries. The personal representative is distinct from the statutory beneficiaries. Here, the personal representative is the only person making a claim against the government.

The court found that the person addressed in the Tort Claims Act limitations is the personal representative, because they are the only one able to file the claim. The statutory beneficiaries are not bringing a claim.

The court did not believe that the New Mexico Legislature intended the damage limitations to depend on the number of beneficiaries that a deceased victim had. In a wrongful death action, according to the court, there is only one deceased person, so the number of beneficiaries is immaterial.

Medical malpractice claims are complex. Those involving governmental medical provider come with additional issues. There are several deadlines and requirements that are unique to medical malpractice claims and claims against the government. It is important to seek the guidance of an experienced personal injury attorney as soon as possible to insure that you do no miss any critical deadline or other requirements.

Related Reading:
Caps on Medical Malpractice Damages Do Not Lower Insurance Premiums or Healthcare Costs
Medical Malpractice Caps and Public Costs, Who Really Pays?
Medical Malpractice Reform Harms Patients and the Taxpaying Public

Collins & Collins, P.C.
Albuquerque Attorneys

When thinking about oil and gas industry accidents most think about rig explosions and oil leaks. Injury to workers and environmental damage are assumed to be the most obvious consequence of these accidents. However, certain oil and gas industry issues have the potential to affect many different community members.

For example, oil and gas storage sites are located in our communities across the country, with some sites located as close as 150 to 300 feet from residences, churches, schools and businesses. It is easy to overlook the storage facilities, because they are often inconspicuous. At some sites there are no warning signs, fencing, locked gates or other physical barriers to indicate the activity there or help prevent accidents.

Failure to properly maintain these storage facilities can lead to serious problems. These facilities pose a significant danger to the public, particularly to our children and young adults. A recent study released by the U.S. Chemical Safety Board identified 26 incidents since 1983 involving accidents at these oil and gas facilities. Those over two dozen incidents killed 44 members of the public and injured may others.

In some ways, the dangers posed by these locations affect rural community members, who are far more likely to live, work, and interact near these facilities. It is not uncommon in rural areas for children and young adults to socialize at oil sites unaware of the explosive hazards posed by storage tanks containing flammable hydrocarbons and crude oil and natural gas condensate.

It only takes a single incident to cause serious problems. A lighter, cigarette, or even static near one of these tanks may trigger an explosion inside the tank. Such an internal explosion can launch the tank into the air, killing or injuring people nearby in the blink of an eye.

These accidents are not uncommon.

Perhaps most common are gas pipeline explosions which when they occur, they can be incredibly devastating to the public. Perhaps none were more tragic than the year 2000 pipeline explosion in New Mexico that killed 12 family members who were camping along the Pecos River several hundred yards from the underground explosion.

The case resulted in a record wrongful death settlement for the estates of the deceased. Remarkably, the accident and the horrific scene which greeted emergency responders was so bad that several of the emergency responders suffered severe PTSD and other emotional damages for which they later also filed suit.

Those maintaining these oil and gas sites must take the known safety dangers into account. In the New Mexico case, the pipeline was had not been cleaned or inspected in 5 decades. As a result, the pipeline and the breach point were severely corroded which led to the explosion.

The good news is that with the appropriate safety and security measures these accidents are preventable. In many cases, basic security measures, such as full fencing, locked gates, and locks on tank hatches are often all it takes to avoid these types of accidents entirely. Warning signs and safely designed storage tanks also go a long way to keep unsuspecting community members away from dangerous areas. These measures will be effective in preventing many pipeline accidents.

In the New Mexico case, which involved a 30 inch interstate pipeline, these measures clearly would be insufficient since the campers were nowhere near the pipeline. In all cases, proper inspection, maintenance, and cleaning must be maintained. Common sense might suggest this goes without saying. Yet, it is remarkably common that pipelines are not properly maintained. And with the continuing growth of the natural gas market and the consequent boom in pipeline construction, only time will tell whether all these pipelines were laid properly to begin with.

The bottom line is that oil and gas storage, transmission and pipeline facilities pose a clear risk to community members. It is incumbent upon owners and operators to minimize that risk. Failure to do so can prove devastating to the public and ultimately quite costly to the owner/operators of the facilities.

Related Reading:
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Dangerous Recreational Activities and Assumption of Risk
Punitive Damages in New Mexico: What is Reasonable?

Collins & Collins, P.C.
Albuquerque Attorneys

Even though most employers are required to carry workers' compensation insurance, the truth is that a number of employers in New Mexico do not carry the required coverage. Considering the New Mexico Workers' Compensation Act (WCA), it is often a bad idea for employers to fail to carry this type of insurance. On the other hand, the failure of the employer to carry workers compensation insurance can work to the advantage of an injured employee in the case of employer negligence.

When an employee suffers an work related injury and their employer does not carry worker's compensation insurance, the employee or family may sue the employer in civil court for personal injuries or wrongful death. In New Mexico, if an employer fails to carry workers' compensation insurance, that employer will not be protected by the New Mexico Workers' Compensation Act, including its "exclusive remedy" protection. Failure to obtain coverage can result in heavy fines and a restraining order against the business or employer.

Under New Mexico law, any company with three or more employees must carry workers' compensation insurance. Construction employers must carry workers' compensation insurance regardless of the number of employees. Some jobs, like household employees and real estate salespeople are exempt from the WCA.

Under the WCA, employees that are injured on the job may recover the cost of medical expenses and depending on the extent of the injury, temporary or permanent disability benefits. Workers' compensation benefits are based on the amount the employee earned at the time of the accident. This compensation may be adequate in case of relatively minor injuries. In case of serious and/or permanent personal injuries, or wrongful death, the WCA does not come close to providing adequate recovery to the injured employee.

Though the WCA is couched in terms of protecting the injured employee, the reality is that the WCA is largely for the protection of employers. If an employer falls within the WCA and complies with all of its regulations, including carrying workers' compensation insurance, the employee will only have access to the remedies available under the WCA in case an employee suffers an injury or death. In other words, if an employer carries the required insurance and complies with the WCA, an injured worker or family member will not be able to bring a personal injury or wrongful death suit in civil court against the employer.

With the protections of the employer in mind, the WCA places several limits on how much a worker or family can recover. For example, in case of death, the family may only receive up to $7,500 for funeral expenses plus the cost of medical expenses and lost wages up to the time of death. Dependents are entitled to receive 2/3 of the deceased's worker's weekly wages for a maximum of 700 weeks (about 13 years). If the injury results in a worker's death and a safety device or training is required by law, the family of the deceased worker is eligible for an additional $5,000 provided they file within one year of the date of the worker's death.

If the worker was negligent in using or failed to use a provided safety device, the compensation allowable under the WCA will be reduced by 10%. If the employer was negligent in providing a safety device or training, the compensation allowable under the WCA will be increased by 10%, which is paid directly by the employer and not his workers' compensation insurance. However, the employer can obtain additional coverage for this kind of situation.

It is clear that the compensation available to employees under the WCA is much less than would be available in a personal injury or wrongful death suit in civil court. Workers' compensation benefits cover only medical and disability benefits, while a plaintiff in a personal injury suit can recover for these expenses as well as pain and suffering and in some cases even punitive damages.

If you or a family member were hurt in a work-related accident, it is important to contact an experienced personal injury attorney to determine what recovery might be available beyond the very limited recovery allowed under the WCA.

Related Reading:
Third Party Liability for Work Related Injuries
Employers Protected from Liability for Gross Negligence Toward Employee Safety
Employer Responsibility for Worker Safety? No, But Thanks for Playing.

Collins & Collins, P.C.
Albuquerque Attorneys

Dehydration and malnutrition have become so commonplace in nursing homes that many have called them "the silent killers." According to a study by The Commonwealth Fund, 35 to 85% of nursing home residents suffer from malnutrition, and between 30 and 50% are underweight. Another study published by the Journal of the American Geriatric Society found that an alarming 39 out of 40 residents studied did not receive adequate fluids for every day that the study was conducted. The Centers for Disease Control (CDC) estimated that as many as 208,000 patients over the age of 65 were released from short-term hospital stays with a primary diagnosis of dehydration.

Despite Federal and state laws requiring that nursing homes provide for their residents' nutritional needs, malnutrition and dehydration continue to plague the nursing home system. Under the Nursing Home Reform Act of 1987, 42 CFR § 483.25, nursing homes are required to ensure that a nursing home resident "maintains acceptable parameters of nutritional status," measured by weight and protein levels. They are also required to provide a resident with a therapeutic diet if nutrition becomes an issue. Additionally, if a resident is unable to care for him or herself, the nursing home is required to provide all of the services necessary to ensure proper nutrition.

There are many causes for dehydration and malnutrition in nursing homes. Many nursing home residents often cannot take care of themselves and in some cases need help eating and drinking. According to the Commonwealth Fund study, 40 to 60% of residents suffer from dysphagia, or swallowing disorders. Dysphagia may occur as a result of Parkinson's disease, strokes, dementia, or other neurological disorders. Additionally, 60 to 70% of nursing home residents suffer from some form of cognitive impairment, which in many cases involves patients who require assistance eating.

There are several other reasons why a nursing home resident may become dehydrated or malnourished. In certain cases, depression and cognitive impairment may lead to weight loss. In others, dental health problems that are not properly managed may make the patient unable to eat or limit their diet. In yet other cases, cultural or ethnic preferences may not be available in the nursing home's restricted menu. Some medications, including anti-depressants and high blood pressure medicine act as diuretics; other medications may make a patient sweat more.

There are several dangers involved with malnutrition and dehydration, especially among the elderly. Besides aggravating many existing ailments, malnutrition and dehydration can lead to tooth decay, high blood pressure, and even death. Dehydration can also cause kidney failure, coma, and electrolyte abnormalities.

Under the Nursing Home Reform Act, failure to detect and treat malnutrition and dehydration is a form of neglect. Several studies have suggested that incidences of malnutrition and dehydration can almost always be attributed to understaffing and poor supervision. Solutions as simple as having an adequate number of staff that are properly trained to supervise resident's food and fluid intake and routinely offering a resident fluids or food could avoid a large number of these situations and save lives.

While it is good news that these conditions are almost always preventable, it is also alarming to know that all of the injuries and even deaths that resulted from these conditions should not have happened had the nursing home not been negligent. If your loved one has suffered similar injuries as a result of the neglect of his or her nursing home, it is important address the issue immediately with the staff. If this does not fix the problem or severe injuries have already been suffered, then you should consult with an experienced personal injury attorney to determine whether or not there might be a nursing home negligence or abuse claim.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico Dram Shop laws were enacted to assign liability to persons or establishments who serve alcohol to a visibly intoxicated person. If the intoxicated individual later causes personal injury or property damage because of their intoxication--say by driving drunk--the establishment can be found liable for serving them alcohol. Under the New Mexico Dram Shop Liability Act, plaintiffs have to prove that the establishment served alcohol to a patron when it was "reasonably apparent" to the establishment that the patron was intoxicated.

Proving a dram shop claim can be difficult. In the past, defendant establishments have tried to avoid liability in many ways. Some defendants have claimed that if the specific server could not be identified so that there was no way to prove that it was reasonably apparent to that server that the patron was intoxicated. In other cases, there is no direct evidence to prove that it was "reasonably apparent" that the patron was intoxicated because there were no independent witnesses and establishment employees will not testify that they knew the patron was intoxicated.

In Gutierrez v. Meteor Monument, the New Mexico Supreme Court recently made it significantly easier to bring a dram shop claim against an establishment. Gutierrez held that identification of the particular server is not essential to a dram shop case and circumstantial evidence alone is sufficient to prove that it was "reasonably apparent" that a patron was intoxicated at the time he or she was served alcohol.

The underlying suit in Gutierrez dealt with a patron who consumed several beers and malt liquor before he crashed his car into a motorcycle an hour later, ultimately resulting in the motorcycle rider's death. The rider's estate and family successfully sued the patron and Meteor, the establishment where he had been drinking prior to the crash. The defendant establishment appealed and the New Mexico Court of Appeals reversed the dram shop verdict against it, holding that since there was no evidence of the specific employee who served the patron, there was no evidence to support the finding that the patron's intoxication was "reasonably apparent" to that server.

The New Mexico Supreme Court disagreed. The Court held that the "reasonably apparent" standard for dram shop liability is an objective standard that does not depend on the personal, individual perception of any specific server. On the contrary, the "reasonably apparent" standard applies to any server who should have known that the customer was intoxicated because the intoxication would have been "visible, evident, and easily observed." The Court continued by explaining that if the "reasonably apparent" standard were a subjective one, there would be very few successful dram shop claims because employees and establishments would be able to avoid liability by testifying that they did not think that the patron was intoxicated.

Next, the Court went on to discuss circumstantial evidence acceptable under this objective standard to prove apparent intoxication at the time of service. While testimony of other witnesses present at the time is widely accepted as circumstantial evidence to prove apparent intoxication, in many cases, this testimony doesn't exist. Many establishments argue that this should be the only circumstantial evidence admissible. The Court in Gutierrez, however, listed several other sources of evidence including the patron's own testimony as to how many drinks he or she consumed, how long the patron was present at the establishment, the observations of police officers at the accident scene, and the results of Breathalyzer tests. In Gutierrez, the court discussed the fact that the patron was known to be an alcoholic by the defendant's employees, that he was a regular customer of the defendant, and that he was usually visibly intoxicated by early afternoon. The Court also discussed the observations of police officers at the time of the accident, one hour after Defendant served the patron his last drink, as well as the results of a subsequent sobriety test and blood alcohol level tests.

This decision by the New Mexico Supreme Court is likely to have an impact on personal injury and wrongful death claims based on dram shop laws. By making it clear that the identity of a particular server is not necessary for a successful claim, and by expanding the allowable circumstantial evidence to prove apparent intoxication, the Court has made it easier for personal injury victims to bring a dram shop claim against a negligent establishment.

If you or loved one has been injured or harmed by a drunk driver, and that driver was highly intoxicated, the first question should be how is it that the driver reached that state of intoxication? An experienced personal injury attorney will be able to assist in answering that question which may very well lead to a dram shop claim.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, and other states for that matter, Indian tribes and pueblos retain sovereign immunity. This generally means that suits against tribes and pueblos, including personal injury and wrongful death claims, must be brought in tribal court. However, under the Indian Gaming Compact, tribes have given up sovereign immunity for suits involving personal injury and property damage caused by enterprises authorized under the Compact. This means that Indian casino patrons can bring personal injury suits in state court.

New Mexico state courts have traditionally been largely deferential when it came to sovereign immunity claims. Generally, guests of restaurants and gas stations adjacent to casinos had difficulty keeping their suits in state district court due to claims of sovereign immunity. In its recent ruling in Mendoza v. Tamaya Enterprises, however, the New Mexico Supreme Court has considerably restricted sovereign immunity as it relates to gaming establishments and liquor laws.

The suit in Mendoza v. Tamaya Enterprises alleged that the Tamaya Resort was liable for the wrongful death of two intoxicated guests killed after leaving a wedding reception. The Defendant Resort claimed that New Mexico state courts did not have jurisdiction over the case because the Plaintiffs were not in the resort to gamble, and therefore its actions were governed instead by the Pueblo Liquor Ordinance. Under the Ordinance, tribal courts claim exclusive jurisdiction.

The New Mexico Supreme Court disagreed, consistent with the New Mexico Court of Appeals earlier ruling, and has allowed the suit to proceed in state court. Even though there was no evidence that the deceased were in the resort for gaming purposes, the Court held that state courts have jurisdiction over their wrongful death claims. With this holding, the Court cleared up a long-standing gray area, and made it clear that regardless of whether the injury or property damage had any connection to gaming, state courts have jurisdiction if the injury or damage was caused by the actions of a gaming establishment authorized under the Indian Gaming Compact.

Finding that state courts did have jurisdiction over the case, the Court proceeded to discuss what kind of a suit can be brought in state court under the circumstances. The Court found that the Plaintiffs had a common law dram shop third party and patron claim against the resort. New Mexico dram shop laws place liability on a person or establishment who serves alcohol to an individual who they knew or should have known was intoxicated.

The Court went on to define common law third party dram shop claims, common law patron claims, and the standards to prove each claim in state courts. In New Mexico, a common law third party dram shop claim is present when a defendant serves alcohol to an individual who is visibly intoxicated and that individual later injures a third party. Citing important policy considerations, the New Mexico Supreme Court also recognized a common law patron claim, where the intoxicated patron himself can bring a personal injury and wrongful death suit against the establishment that over-served him or her.


In order to harmonize this case with previous rulings and existent laws, the Court clarified the elements and standards for both types of claims. In a third party dram shop claim, the third party must prove that the person or business was negligent and that this negligence caused the third party's damages or injuries. In a patron claim, the patron must prove that the server or business "acted in gross negligence and in reckless disregard" of the patron's safety and that these actions caused the damages and injury. In other words, patrons must show a higher level of culpability by the defendant.

This recent ruling has significantly cleared up several uncertainties in cases involving Indian casinos and has increased the legal options for guests injured in these places. This does not necessarily mean that all cases involving Indian casinos can be brought in state court. However, at the very least hopefully it will prompt establishments to be more vigilant in protecting all of their guests.

Dram shop cases can be complex and challenging. This is doubly so when dealing with an Indian Casinos. An experienced personal injury attorney will be able to lead you through this difficult and sometimes frustrating process of bringing claims against an Indian Casino.

Collins & Collins, P.C.
Albuquerque Attorneys

Most people are aware of the concept of a statute of limitations period which is a time frame in which a claim must be brought or is lost forever. There are many subtleties that must be understood as well and it is these that cause injured people the most problems.

There are different limitations periods for different types of claims. For example, in New Mexico, there is a three-year statute of limitations period for a personal injury claim. Personal injury claims encompass claims in which a person is injured due to a car accident, slip and fall, medical negligence or malpractice and any other type injury to the person that is because of some other person or entity's negligence.

However, that three-year limitation period has some conditions. The three years applies to claims against a person or entity that is not a public entity. Public entities are municipalities, counties and states, and their agencies. There are also numerous hospitals that are public entities, some obvious which are tied to a state university, such as the University of New Mexico Hospital, and some not, with names that do not immediately suggest that the entity is public.

In cases involving public entities, the statute of limitations for bringing a personal injury claim is two years, with a notice requirement that obligates the injured party to notify the potential at-fault public entity within 90 days for a personal injury, or six months if the claim is for a wrongful death.

To further complicate the matter, in New Mexico there is a statute that is applicable to injury claims against some doctors or healthcare providers, but not all. The Medical Malpractice Act (Act), NMSA 1978, Sections 41-5-1 to -29 (1976 as amended through 2008) is stated to be a patient's compensation fund, that provides excess insurance for medical negligence claims worth more than $200,000, excluding punitive damages.

To qualify as a "qualified healthcare provider" under the Act, the doctor must pay a surcharge and have insurance coverage of $200,000 per occurrence or deposit that amount with the Superintendent of Insurance. Pursuant to the statute covering these healthcare providers, any claim must be brought against the doctor or healthcare provider within three years of the date of the negligent act.

This differs signficantly from the general statute of limitations for personal injury actions which requires the action be brought within three years from when the plaintiff "discovers, or reasonably should discover" the existence of his or her claim. The difficulty with the claim against the qualified healthcare provider is that the potential plaintiff might not even know of the existence of his claim until three years AFTER the date of the negligent act. Under the statute, the claim is barred and the potential plaintiff cannot bring his claim.

While there is no good answer to what is arguably completely unfair to a party who has been injured through medical negligence, the best advice is to consult an experienced personal injury attorney immediately when one has a concern that he or she might have suffered harm through medical negligence.

An attorney can quickly determine if the doctor or healthcare provider is a "qualified healthcare provider" under the Act, and file an immediate application with the Medical Review Commission to evaluate the claim. The filing of the panel application stops the running of the statute until the panel makes a decision. After the decision, the claimant can determine if pursuit of the claim is worthwhile or not.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New Mexico Supreme Court case once again addresses loss of consortium claims. Specifically, the Court in Wachocki v. Bernalillo County Sheriff addresses a claim for loss of consortium by a sibling.

The case involved the death of 22 year old Jason Wachocki which was caused by a speeding Metropolitan Detention Center van. A successful wrongful death claim was brought on behalf of Jason's estate. However, the loss of consortium claim brought by Jason's brother, Bill Wachocki, was denied by both the district court and the New Mexico Court of Appeals.

The basis for the loss of consortium claim was the very close relationship shared by the brother. Growing up, they had shared a bedroom and at the time of Jason's death, they had been sharing an apartment for 8 months for which they shared expenses. Bill had a close relationship sharing many activities together. Bill looked up to Jason as a role model confidante.

The Court relied upon the 2003 New Mexico Supreme Court case of Lozoya v. Sanchez.. Lozoya set forth several factors for consideration of a loss of consortium claim:

"the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and . . . whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements."

The Court of Appeals determined that the brothers did not share a sufficiently close relationship as required under Lozoya. Bill's attorneys argued that the Court of Appeals improperly applied the "mutual dependence" factors set forth in Lozoya. He argued that this factor should not be applied to a sibling relationship since it was intended for spousal type relationships.

The Supreme Court disagreed with Bill's position refusing to alter the Lozoya test to fit the sibling relationship. The Court believed altering the factors would result in countless future permutations to fit an indeterminate variety of relationships in the future. The Court suggested that this would cause undue confusion on the lower courts perhaps spawning lawsuits for all manners of relationships.

Instead, the Court determined to simplify the Lozoya factors to accommodate varying relationships. Though Bill's loss of consortium claim was denied, the Court made clear that its decision was not an absolute bar to sibling loss of consortium claims. The Court held, consistent with the Court of Appeals, that the key to the analysis of loss of consortium claims is "mutual dependence" factor set forth in Lozoya.

The Court suggested that the level of mutual dependence might exist between siblings noting that unmarried cohabitants and grandparents had shown the necessary mutual dependence in past cases. Interestingly, the Court noted that most other states do not recognize sibling loss of consortium claims. The Court seemed to suggest that in New Mexico, though it is not entirely clear from the opinion, that not only might siblings meet this standard but other relationships as well.

In any event, the Court determined that though the brothers were very close, they were not mutually dependent as required under Lozoya. Unlike spouses, unmarried cohabitants, grandparents, though they had a close emotional attachment and shared expenses, this did not meet the level of mutual dependence to support a loss of consortium claim

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

New Mexico is home to many Indian Casinos. They are very popular. Like any other business, particularly casinos, there are countless ways for patrons to be injured. When a personal injury occurs at or near an Indian Casino, the first and most important question is whether or not there is sovereign immunity protecting the tribe or pueblo form suit in New Mexico State courts.

For the most part, tribes and pueblos enjoy sovereign immunity against any kind of legal action. This includes everything from personal injury claims to contract disputes. Sovereign immunity means that suits against the tribes or pueblos must be brought in tribal court. This poses a very significant and often overwhelming challenge to plaintiffs.

In case of Indian Casinos or gaming, there is qualified immunity. Under the Indian Gaming Compact, the tribes and pueblos waive immunity for suits by visitors or patrons for personal injuries suffered in relation to the gaming enterprise.

Often times, when personal injuries occur at or near a gaming facility, the tribe or pueblo will attempt to argue that the accident and consequent injuries and damages were unrelated to the gaming enterprise. Many times, the connection is clear such as when a casino patron is injured while gambling at the casino, or while entering or exiting the casino prior to or following gambling activities. However, there is most definitely some gray area.

The New Mexico courts have generally shown great deference to the sovereign immunity claims of the State's many tribes and pueblos. The New Mexico Court of Appeals significantly curtailed tribal immunity in the case of Mendoza v. Tamaya Enterprises. This case involved a wrongful death suit against Tamaya by the guests of the Indian resort killed in a drunken driving accident following a wedding reception. There was no indication that the guests were there for gaming purposes but the New Mexico Court of Appeals found that there was no immunity for the tribe allowing the wrongful death suit to proceed in state court. The case is now on appeal to the New Mexico Supreme Court.

The case will have significant implication for guests and patrons of Indian resorts centered around Indian gaming, which is New Mexico is generally the case. As it stands, guests of the many truck stops, gas stations and restaurants adjacent to Indian Casinos face very difficult immunity issues in case of personal injury. Clearly, it is in the tribes' interest to extend the reach of immunity to all activities that do not actually occur inside the gaming facility itself.

Indian casino based resorts play host to countless visitors, many of which are there for events other than gaming. The position of the tribes and pueblos would leave little or no recourse for guests injured at weddings, parties, fundraisers, conventions, hotels, and bars on Indian casino grounds. This is clearly in the financial interests of these hugely profitable casino based resorts. Unfortunately, the interests of the visiting public are directly opposed to tribal immunity which will often bar recovery for claims no matter how great the negligence of the tribal enterprise and no matter how great the injuries

Collins & Collins, P.C.
Albuquerque Attorneys

The 10th Circuit case of Willis v. Bender addressed a doctor's duties to disclose the doctor's background information to a patient as part of informed consent. Lack of informed consent is often an element in medical malpractice claims in New Mexico particularly in surgical procedures.

Under New Mexico law, informed consent does not typically require that a physician provide the patient with the doctor's background information even matters related to competence. The courts reason that such a duty would require the disclosure of large amounts of information not necessarily relevant to the patient's medical decision-making.

However, the 10th Circuit Court of Appeals (Wyoming) in Willis v. Bender addressed a situation where the patient explicitly inquired into the doctor's background, and the doctor provided false and misleading information in response to the patient's inquiry. The Court found that in this case, a failure to provide honest and truthful answers to the patient's questions violated the patient's right and the doctor's duty of informed consent.

Willis v. Bender involved a laparoscopic cholecystectomy, laparoscopic surgery to remove Ms. Willis' gallbladder. Ms. Willis had several prior surgeries in her abdominal area causing significant abdominal scarring and adhesions. Due to the scarring and adhesions, the doctor who performed two of the prior surgeries advised Ms. Willis that future surgeries should be performed with an "open" rather than "closed" procedure.

During the consults leading up the surgery with Dr. Bender, Ms. Willis discussed the need for a closed procedure due to the scarring. Ms. Willis asked a number of questions of Dr. Bender regarding his qualifications for the procedure, his past history of such procedures, his success rate, past medical malpractice complaints and prior issues with his license. She also requested that Dr. Bender consult with her prior doctor prior to moving forward with the closed procedure.

Dr. Bender assured Ms. Willis that he had never had a medical malpractice complaint, had no prior issues with his license, that he had a 99.9% success rate with this type of procedure and that he had discussed the procedure with her prior doctor suggesting the two had agreed on the proposed approach to the surgery. In fact, Dr. Bender had had a several prior medical malpractice claims, one involving a wrongful death action resulting from a the death of a patient following a laparoscopic cholecystectomy. In addition, Dr. Bender had past actions against his license by the Wyoming Board of Medicine. Perhaps worst of all in light of the facts, Dr. Bender had never contacted Ms. Willis' prior doctor to consult regarding the risks of the proposed closed procedure.

Unfortunately, the closed procedure did not go well due to the existing scar tissue. There were several surgical and post-surgical complications including a bowel perforation and a resulting bowel obstruction, ileus, and severe infection.

The 10th Circuit recognized that a doctor generally has no duty to disclose background information. However, the court stated, "Under these circumstances, if proved, her consent can hardly be considered "informed."" As a result, the Court reversed the District Court's summary judgment in favor of Dr. Bender.

Willis v. Bender raises some important issues. As seen in previous posts, hospitals and surgery carry an alarming level of risks. Patient's are advised "Protect Thyself" by taking measures to protect themselves from harm. In light of the lack of an affirmative duty on the part of the physician to disclose relevant background information, a patient should ask the questions. In the great majority of cases, the doctor will respond honestly. However, in those rare situations where the doctor is not honest, the patient will have some recourse for the misrepresentations assuming New Mexico follows the lead of the 10th Circuit Court of Appeals.

Related Reading:
Are Guns Safer than Hospitals?
Hospital Survival: Essential Strategies
Tort Reform and The Hypocritic Oath

Collins & Collins, P.C.
Albuquerque Attorneys