New Mexico Injury Attorney Blog - Collins & Collins, P.C.

One of the biggest challenges in claims against counties under the Tort Claims Act has always been the venue requirements. The venue requirements have forced plaintiffs in personal injury and wrongful death claims against counties to file their lawsuits in the county itself. This has too often resulted in home-town justice.

Fortunately, this often harsh venue requirement is absent from the New Mexico Civil Rights Act.

New Mexico Tort Claims Act Venue Requirement

It should be noted that there are different venue requirements for lawsuits against the State of New Mexico and its agencies, and the venue requirements for claims against a county. Venue for lawsuits against the State of New Mexico is always proper in Santa Fe. However, for lawsuits against New Mexico counites, the suits must be brought in the county itself as stated by N.M. Stat. Ann. § 41-4-18:

“Venue for all other claims pursuant to the Tort Claims Act, shall be in the county in which the principal offices of the governing body of the local public body are located.”

As one might imagine, and for good reason, filing suit against a county in the county itself can and does result in what some might call home-town advantage to the county. The problem is particularly problematic in some of the counties that border Texas which seem at times to have adopted Texas style justice which is not at all friendly to personal injury and wrongful death victims or their families. These courts can be particularly unfair to victims of police and jail abuse.

Venue Under the New Mexico Civil Rights Act

There is no such home-town advantage for counties under the New Mexico Civil Rights Act. Under House Bill 4 (not yet been codified into a New Mexico statute), the venue for a civil rights lawsuit under the New Mexico Civil Rights Act (H.B. 4) against any public entity is proper in any New Mexico District Court:

B. A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court.
NM LEGIS 119 (2021), 2021 New Mexico Laws Ch. 119 (H.B. 4)

The language in H.B. 4, Paragraph B means that these cases can be brought anywhere in the State. Plaintiffs need no longer subject themselves to Texas style justice on the Texas border or anywhere else.

Unanswered Liability Caps Questions Regarding Venue

One interesting as of yet unanswered question regarding venue is the question of liability caps on these cases. Liability caps set a limit on the amount that a personal injury or wrongful death victim can obtain through court. Under the Tort Claims Act, the cap is $700,000 for personal injury claims but only $400,000 for wrongful death claims. This is due to the allowance of up to $300,000 past and future medical expenses that may not be present in a wrongful death lawsuit. Either way, the Tort Claims Act cap on liability for governmental entities is obscenely low.

The New Mexico Civil Rights Act raised the cap to $2 million per occurrence. In addition, the $2 million is not exclusive of other remedies or damages. In other words, a person injured by a governmental entity for civil rights abuses such as a police misconduct or jail misconduct can still seek the full cap under the Tort Claims Act above and beyond the $2 million caps under the Civil Rights Act.

The question that has yet to be answered is whether a plaintiff will be forced to file the Tort Claims separately in the subject county or whether the plaintiff will be able to file both the civil rights claims and tort claims in a county where home-court biases of local jurors and judges can be avoided and justice for the victim is possible.

Risks Associated with Filing Suit in Unfavorable Venues

Like the federal courts, police and jail misconduct lawsuits are viewed with disfavor in some counties. There is a very real risk of getting home-towned in some counties if civil rights lawsuits under the New Mexico Civil Rights Act are filed there. It would be perhaps unwise to do so when an alternative more favorable venue is available. This is particularly so given the $2 million caps under the Civil Rights Act. The $400,000 cap on wrongful death claims under the Tort Claims Act would make it exceedingly unwise to proceed in a county unfriendly to victims of police or jail abuse unless this was the only possible venue. Fortunately, this is no longer the case. Filing in a court more prone to do justice in these cases is now allowed and will soon become the norm.

It is a new day in New Mexico for civil rights claims for victims of governmental abuse, including those perpetrated by county jails and local police.

Question: Does a gas station have a duty of care to third parties to refrain from selling gas to obviously intoxicated drivers?

Answer: In New Mexico, they now do under the recent New Mexico Supreme Court case of Morris v. Giant Four Corners, Inc.

Facts of Case

Basically, two intoxicated patrons entered a Tribal gas station. They arrived at the gas station without a vehicle or even a gas can to fill. Instead, in the presence of the clerk, they emptied a gallon of water so they could fill it with gas. Initially, knowing the two were intoxicated, the clerk refused to sell them anything but later relented selling them the gallon of gas with which they returned to their vehicle on foot. The two intoxicated individuals then returned to the same gas station and purchased additional gasoline. After dropping off his passenger, the driver then had a head-on collision with another vehicle killing the driver of that vehicle.

A lawsuit was filed in federal court because the defendant was a tribally owned entity. The federal court recognized New Mexico’s doctrine on negligent entrustment of chattel property. Chattel property is simply property that is not land or real estate. Under negligent entrustment, an owner or controller of chattel has “a duty to others not to give control of a dangerous instrumentality to a person incapable of using it carefully.” The federal court recognized also that there was no clear New Mexico law on whether the sell of gasoline fell under the doctrine and sent the case to the New Mexico Supreme Court for a ruling on the issue.

Negligent Entrustment of Chattel

New Mexico has long recognized the doctrine of negligent entrustment of chattel as a viable legal claim. Thus, the key element is negligence, and it is clearly negligent to allow someone to use your property knowing that the person will use it negligently or recklessly creating an unreasonable risk of harm to others.

There is a general doctrine of reasonable care which places a duty on individuals, entities and groups to exercise reasonable care in dealings and activities with the public. Until Morris v. Giant, there was no specific law or case-law finding a duty not to sell gasoline to intoxicated drivers. The Court In Morris v. Giant reiterated prior case-law recognizing that a duty of care should be found only when public policy considerations suggest the necessity of the duty. Moreover, the existence of a duty is not determined by foreseeability of harm which is a question for the jury. Instead, the existence of the duty must be determined as a matter of law which in turn is a matter of public policy.

Public Policy

There are numerous cases expressing public policy on the matter of negligent entrustment. In automobile cases, it is negligent, and one may be held liable for any automobile accident allowing someone that the owner of the vehicle knows to be drunk, reckless or otherwise incompetent to operate a vehicle. Dram shop laws prohibit bar and restaurant staff from serving obviously intoxicated patrons. These same laws apply to homeowners hosting parties with alcohol. In fact, the cases go so far as to provide for claims by the drunk patron or guest himself if he gets in a car accident. New Mexico has clearly expressed a public policy of reducing DWI accidents in the State. In fact, dram shop laws are extremely broad allowing for numerous possible claims for service of drunk patron or guest.

No Duty to Investigate

It is important to note that there is no duty to investigate whether a customer or patron is intoxicated. In other words, neither bar, restaurant, homeowners nor gas station attendants must test the customer’s blood alcohol or conduct field sobriety tests on the customer. However, it is pretty well established both by common sense and law that one need not be police officer or other professional to tell when someone is showing signs intoxication. Whether or not the gas station attendant, just like bartenders, wait staff or homeowners, knew or should have known the person was intoxicated will be a fact question for the jury. If a person is drunk and gets behind the wheel, it is beyond debate that this would present a foreseeable risks of harm to others.

Common Sense Suggest the Sale of Gasoline

There has already been a bit of an uproar over the decision. Basic common sense and law suggests the outcome of the case is proper and justified. With the law as stated, it seems clear that the entrustment of gasoline which is chattel would be covered. Why should gas stations be immune from the doctrine of negligent entrustment? The burden is not great. It simply requires that an attendant not sell gasoline to an obviously drunk driver. The pushback will come primarily from the oil and gas industry along with its retail gasoline outlets. So perhaps, it is the sale of gasoline that is sacred and somehow immune from the rules that the rest of society must follow. In the case of gasoline, would it not be negligent and actionable to sell gasoline to a known arsonist? So too is it negligent to sell gasoline to someone who is clearly intoxicated as the risks are equally grave.

Morris v. Giant is a good and long overdue decision. It should in some measure lead to safer roads for everyone in New Mexico.

A report from the Albuquerque Journal indicates that nine inmates died while in the custody of the Bernalillo County Metropolitan Detention Center (MDC) during the prior August 2020 to January 2021. At least 72 inmates died in the custody of NMCD from June 2016 to November 2019.

What is the common denominator in all these deaths? Centurion Correctional Healthcare of New Mexico (Centurion) was the medical contractor providing medical care to those deceased inmates. The question is whether or not this is purely coincidental?

Centurion Lawsuits

As of the writing of this article, Collins & Collins, P.C. has filed 18 lawsuits against Centurion. The most recent lawsuit filed by the firm, Estate of Samuel Bryant v. Centurion, Bernalillo County, et al, involved a detox death at MDC. Sadly, again according to the Albuquerque Journal, Samuel was one of six MDC inmates that died during detox. One detox death is inexcusable. Six approaches criminality. Until that lawsuit, the firm had not filed any lawsuits against MDC. Rather, the lawsuits were limited to New Mexico Corrections Department (NMCD).

Centurion according to the contract with MDC took over medical care at the facility on January 1, 2020 with a first year compensation base of $13 million. These 18 lawsuits will by no means be the last. It is expected that there will be additional lawsuits arising out of Centurion’s medical services at MDC. Likewise, there will likely be additional lawsuits arising out of NMCD medical care despite the fact that Centurion vacated the contract in November 2019.

Centurion Vacated NMCD Contract Early

The original contract between NMCD and Centurion was for 3 years. The term had been extended for one year so the contract should have ended around June of 2020. However, Centurion as mentioned above vacated early in November 2019.

Centurion Vacating MDC Contract Early

According to press reports, Centurion will be vacating the MDC early as well. The contract with MDC was for 4 years. Assuming the press reports are accurate, Centurion will be leaving about 2.5 years early on its 4 year contract. It is not known yet why Centurion is leaving but that is certainly something that Collins & Collins, P.C. will be exploring in its most recent lawsuit against MDC and Centurion.

Centurion Cannot Exit New Mexico Soon Enough

Centurion’s performance in New Mexico prisons and jails is appalling to say the least. This can be judged purely on the basis of the number of deaths at NMCD and MDC under Centurion’s medical watch. However, it is much worse than that. The clients of Collins & Collins, P.C. have suffered severe and permanent injuries at best while a number have died under the care of Centurion. Keep in mind that Collins & Collins, P.C. is a small firm among many law firms in New Mexico. There have been many other suits filed by other firms with equally devastating and avoidable injuries arising out of the callous medical neglect of New Mexico inmates. Likewise, there have been other deaths. Worse still, the true toll of Centurion’s tenure in New Mexico is not known as few inmates actually file suits for many reasons which are beyond the scope of this article. In addition, NMCD deaths resulting from Centurion’s gross incompetence are likely far higher than the 72 identified since deaths that occur outside NMCD premises do not show up in Office the Medical Investigator reports.

The toll on inmates and their families is incomprehensible. The toll on New Mexico taxpayers has not been measured but the costs associated with medical neglect in NMCD facilities is enormous.

Prison and Jail Medical Care Unlikely to Improve

Even if Centurion leaves the state completely, the medical care for New Mexico prison and jail inmates will not improve as things stand now. With regard to the state’s prisons, the big problem is NMCD itself. NMCD is a renegade agency, chocked full of corruption, incompetence, and deliberate cruelty. NMCD simply does not care about constitutionally adequate medical care. If it did, why would it keep the same medical providers as the medical contractors come and go. That’s right, the individual medical providers, including doctors, physicians assistant, nurses and others, remain the same after one contractor leaves and the next takes over. It is not a change in medical care, it is simply a change in payee on the checks written by the taxpayers of New Mexico. Even worse, the contractors are on a revolving plan. One contractor gets fired or leaves, the next one steps in. This would not be so bad, but NMCD simply fills the slot with medical contractors that had already failed in the State. This will likely be the same with MDC which is illustrated by the fact that MDC hired Centurion to begin with despite the large number of suits filed against Centurion both in New Mexico and other states.

Centurion Involvement Coincidental?

Perhaps coincidental is not the right word. Centurion just happens to be the payee on the checks now written by MDC and formerly the checks written by NMCD. It is not coincidence. It is standard operating procedure on the part of New Mexico prison and jails. They rotate the same bad actor medical contractors from one contract term to the next. At the same time, the same incompetent and too often deliberately cruel individual medical providers stay in place from one medical contractor to the next.

This is unfortunately the state of prison and jail medical care in New Mexico for the foreseeable future. This is certainly the case at the present with the successor to Centurion, Wexford, performing as poorly and arguably worse than Centurion. The beat goes on and this will continue until NMCD is completely overhauled beginning with its contracting practices.

Since filing the PETITION FOR DECLARATORY RELIEF AND TEMPORARY RESTARINING ORDER (PETITION)challenging the constitutionality of the New Mexico Corrections Department (NMCD) grievance system on May 20, 2021, NMCD has responded as has come to be expected. NMCD has retaliated against the inmates named as Plaintiffs in the suit.

Unwarranted Transfers to Other Facilities

Since the filing of the lawsuit, several inmates have been moved from Western New Mexico Correctional Facility (WNMCF) in Grants, NM to Springer Correctional Facility (SCC) in Springer, NM. Both WNMCF and SCC are women’s facilities. These transfers may well become problematic for NMCD in at least a couple of ways.

The first and most glaring problem with the transfers to Springer Correctional Facility is in the fact that SCC is in the process of being shut down due to the unconstitutional confinement conditions including fairly regular sexual assault by NMCD personnel on the female inmates.

Second, there is not rational justification for the transfers. The chronology of the transfers alone suggest retaliation. However, there is more. Several inmates at WNMCF began to suffer retaliation even before the lawsuit was filed. This result was the product of NMCD personnel opening legal mail from their attorneys related to the preparation of the lawsuit including legal representation agreements. There will be more about this below.

Solitary Confinement

At least one inmate transferred from WNMCF to SCC was reportedly placed in solitary confinement for 5 days upon arrival at the Springer facility. Solitary confinement is considered torture by the United Nations. New Mexico Corrections Department has longed used solitary as a weapon against inmates and staff reduction tool due to the chronically and dangerously understaffed NMCD facilities. In fact, the routine and inappropriate use of solitary by NMCD led to changes in the law. NMCD largely ignores the law as it does civil rights laws. NMCD likes to use quaint euphemisms for solitary confinement and literally refuses to use the term solitary confinement. But solitary confinement is solitary confinement no matter what label NMCD chooses to give it. https://www.collinsattorneys.com/solitary-confinement-by-any-name-is-solitary-confinement/ In keeping with NMCD habits and propensities, the solitary confinement of the inmate transferred to SCC will likely be cynically labeled something other than what it was.

Retaliatory Interference with Attorney Client Communications

As referenced above, interference with attorney client communications and the attorney client relationship has soared since beginning the process of filing the PETITION. NMCD began opening legal mail from Collins & Collins, P.C. early in the process. Inmates began complaining of this long before it had been determined that a lawsuit would be filed. The tampering and interception of legal mail began while the issues were being investigated. In fact, the tampering with legal mail was among the last straws leading to the lawsuit. Ironically, if this is the right word, Collins & Collins, P.C. began warning inmates that they would probably be retaliated against for participating in the lawsuit or even speaking with the firm. NMCD did not disappoint. On cue, NMCD did just that and the retaliation has not stopped. It has intensified.

Intensified retaliation against the inmates named in the lawsuit includes:

1. It has been reported that several inmates have suffered inexplicable reductions in good time delaying their release dates.
2. Inmates have reported interference with canteen privileges.
3. Inmates have reported interference with visitation.
4. Inmates report shakedown of their cells with property seized and destroyed.
5. Inmates report that legal documents have been seized and destroyed.
6. Inmates report medical and other grievances being seized and destroyed.
7. Inmates have reported legal mail being opened by NMCD employees.
8. Inmates have reported sending legal mail which was never delivered to Counsel.
9. Inmates have reported being inexplicably transferred to other facilities.
10. Worst of all, inmates have reported suffering solitary confinement.

July 1, 2021 Cannot Come Soon Enough

The New Mexico Civil Rights Act takes effect on July 1, 2021, about 18 hours from the writing of this post. As NMCD well knows, interference with the attorney client violation is a violation of the 1st Amendment. July 1 cannot come soon enough.

The state of medical care for New Mexico Corrections Department (NMCD) inmates is horrendous at best, horrifying at times. The prison medical grievance system is supposed to protect inmates who are not getting constitutionally adequate medical care. It does no such thing. In fact, the medical grievance system itself encourages and perpetuates grossly deficient medical care that is often recklessly incompetent, far too often seemingly intentionally cruel and generally deliberately indifferent to the serious and even life-threatening illnesses.

In short, the NMCD medical grievance system is corrupt and unconstitutional.

Many Lawsuits Filed Against NMCD and Its Medical Providers

Collins & Collins, P.C. has filed numerous lawsuits against NMCD and its medical providers alleging grossly negligent, deliberately indifferent and intentionally cruel failure to provide medical care. Evidence gathered through these lawsuits indicate that not a single inmate medical grievance was found in favor of an inmate by NMCD from June 2016 to November 2019. The firm has been unable to obtain more recent data from NMCD. It is fully expected that the same level of absolute indifference to the medical neglect of NMCD inmates will be found. NMCD simply does not seem to care one way or the other whether inmates are provided constitutionally adequate healthcare.

Purpose of Abuse of Medical Grievance Process is to Deny Inmates Access to Courts

Under both federal and New Mexico law, inmates must exhaust all administrative remedies prior to filing suit in either federal or state court. This is called exhaustion of administrative remedies (exhaustion). In the context of the prison medical grievance process, this means that the inmate must fully complete the medical grievance process. This in turn means filing the right paperwork within the deadlines set by NMCD. The prison medical grievance system is a maze of confusion and obfuscation. It is intentionally so. The point is to set traps for inmates who are rarely educated to the degree necessary to follow the byzantine and often contradictory grievance procedures. If an inmate fails to file all the right paperwork within the deadlines in the form mandated by NMCD, the inmate cannot file suit in court now matter how horrible the medical neglect and consequent injuries to the inmate.

The deliberately confusing and often contradictory grievance procedure requirements are alone sufficient to hold the medical grievance system unconstitutional. However, there is far more to it than that.

Retaliation for Filing Medical Grievance Process

The abuses and obstructions of the medical grievance process are far too numerous to enumerate here. However, they have been enumerated in a lawsuit filed against NMCD by Collins & Collins, P.C. attacking the constitutionality of the medical grievance process. The list of abuses and obstruction is very lengthy though certainly not exhaustive. To view the full magnitude of NMCD abuses in the medical grievance process, view the ETITION FOR DECLARATORY RELIEF AND TEMPORARY RESTARINING ORDER (PETITION) filed by Collins & Collins, P.C. on May 20, 2021.

NMCD inmates have reported directly to Collins & Collins, P.C. the many abuses and obstructions of the grievance process. One of the most frequently reported abuses is retaliation for filing grievances. It seems that NMCD grievance officers often also serve as disciplinary officers. This is most definitely the case at a number of facilities including Central New Mexico Corrections Facility in Los Lunas, New Mexico. This fact alone suggests that the medical grievance process and procedures are unconstitutional.

Retaliation for Questioning the Constitutionality of NMCD Medical Grievance Process

Collins & Collins, P.C. has significant direct experience with its own clients being retaliated for filing grievances (or for talking to Collins & Collins, P.C. generally). This is in fact what precipitated the PETITION. In fact, the high probability of retaliation for joining in the PETITION is conveyed to the inmates before allowing them to join in the lawsuit. This was done as a matter of both professional ethics and concern for inmates getting into something more than they expected. The inmates are extremely brave in joining the suit, each fully understanding the almost certain retaliation against them for doing so.

In fact, many of the inmates were retaliated against prior to the suit even being filed. Inmates lost privileges, have lost good time and at least one was placed in solitary confinement after her legal mail from Collins & Collins, P.C. was opened and read. This in turn resulted in numerous meetings involving inmates, NMCD and its prison management contractors warning inmates against contacting Collins & Collins, P.C. Surprisingly, these meetings were held in open prison pods with numerous witnesses. NMCD and its contractor have taken to individual interrogation of inmates about their relationship and conversations with Collins & Collins, P.C. The end result of one such interrogation was transfer from Western New Mexico Correctional Facility to Spring Correctional Facility which is facing closure due to its abhorrent conditions. Even more shocking the inmate was placed in solitary confinement upon arrival at Springer.

NMCD Fraud on the Courts

In every case filed by Collins & Collins, P.C., NMCD has filed a Motion for Summary Judgment seeking dismissal of the lawsuits due to alleged failure of the inmates to exhaust administrative remedies. According to NMCD it seems, no inmate ever files a proper medical grievance. The allegations are clearly fraudulent and in fact NMCD has been caught in its attempted fraud on the courts. However, this is not enough. NMCD should be stopped in its tracks to prevent it from filing these fraudulent Motions for Summary Judgment against inmates. Failure to dismantle the NMCD medical grievance system will allow NMCD to continue its frauds on the court in every inmate lawsuit. Beyond its unconstitutionality, the medical grievance system along with the legal exhaustion requirements places an enormous and unnecessary burden on the Court.

Toss NMCD Medical Grievance System Completely

The entire NMCD medical grievance system must be thrown out. It is a case of the fox guarding the hen house. The entire system is geared toward denying NMCD inmates adequate medical care and then access to the courts when disaster strikes with permanently disabling injuries or death to the inmates. NMCD simply cannot be allowed to continue to control and manage the prison medical grievance process. NMCD’s control and management of the prison medical grievance system is an ongoing affront to the New Mexico Constitution, an embarrassment to the State, and an extraordinary burden on New Mexico taxpayers.

This is in fact the goal of the PETITION filed by Collins & Collins, P.C.

There are a number of very important steps that must be completed prior to filing suit against a New Mexico prison or jail. Failure to complete these steps can prevent a prisoner from ever obtaining justice for wrongs committed by the prison, jail or their respective private contractors. To make things worse, prisons and jails, especially New Mexico Corrections Department (NMCD) who we will focus on here, will do everything it possibly can to prevent the prisoner from completing the steps. Much of what NMCD does to keep prisoners out of court is unconstitutional. All of it is grossly unfair. Some is callous and cruel. The rest is run of mill deception that is baked into NMCD’s behavior, akin to standard operating procedure.

The Steps Must be Completed to the Degree Possible

Despite NMCD’s obstruction, it is important that the inmate try to complete these steps the best he or she can. NMCD’s obstruction will much more often than not prevent the inmate from completing the steps. Naturally, NMCD will then try to profit on its own illegal conduct arguing to the Court that the inmate’s lawsuit must be thrown out because necessary steps were not completed. This doesn’t mean the inmate should give up. It just means there is going to be a fight and NMCD’s obstruction and deception will carry right into the courts.

Fortunately, New Mexico State Courts are on to NMCD. The federal courts are an entirely different ballgame with the odds stacked heavily against inmates no matter what the misconduct of NMCD. The reasons for this are complicated but the gist of it is that cases in federal court often end before evidence necessary to the case can be collected due to qualified immunity. As a result of qualified immunity laws, federal court judges do not get to see the evidence of routine atrocities committed against New Mexico inmates at the hands of NMCD and its contractors. The situation is very different in State Court where qualified immunity is not an obstacle.

Step 1: File an Informal Complaint

Under both state and federal law, inmates must exhaust the prison or jail grievance process prior to filing suit. This means completing the grievance process. NMCD requires that an inmate file an informal complaint within 5 days of the alleged wrongful act by the prison or its contractors. Once the prisoner hears back from the prison on the Informal Complaint, the prisoner must then file a formal grievance within 5 days. Once the prisoner hears back on the formal grievance, the inmates must file an appeal within 5 days. This all sounds easy enough, but it is anything but easy.

NMCD’s obstruction, deceit, manipulation and misguidance is staggering. Rather than discuss here the countless ways that NMCD tries to keep prisoners from completing the grievance process, the reader can if interested review the Petition for Declaratory Relief and Temporary Restraining Order by Collins & Collins, P.C. related to the pervasive, illegal and unconstitutional abuses of the medical grievance system. The Petition seeks an Order from the Court declaring the entire prison grievance process unconstitutional. The scale and scope of misconduct is addressed there in 292 pages of complaint and exhibits but is far too expansive to discuss here.

Step 2: File Tort Claims Notice

To sue NMCD in State Court on state law claims, the prisoner must file a Tort Claims Notice within 90 days of the alleged wrongdoing. Compared to the 5 days allowed for the Informal Complaint, this seems like an eternity, but the 90 days can run very quickly.

The New Mexico Tort Claims Act is pretty harsh even in non-prison settings. It results in many valid cases being barred from suit. The first big trap is the Tort Claims Notice. If it is not sent within 90 days, it will bar the prisoner’s lawsuit completely in State Court. The lawsuit might still be filed in federal court, but federal court is a burial ground for prisoner lawsuits. In short, do not miss the Tort Claims Notice deadline.

Step 3: Preservation of Evidence Letter

A preservation of evidence letter should be sent right away. Collins & Collins, P.C. incorporates it into the Tort Claims Notice with what’s called spoliation of evidence warnings. Basically, preservation of evidence is mandatory once NMCD is on notice of the need to preserve the evidence. NMCD has a penchant for destroying and/or concealing evidence so the Preservation/Spoliation Letter is essential. The list of items to preserve in the Tort Claims Notice/Preservation Letter is expansive. It covers basically everything that might relate to the case. If NMCD destroys evidence after receiving the letter, there can be severe sanctions.

Surprisingly, NMCD does not always take the Preservation Letter too seriously. Fortunately, it does not matter if NMCD takes it seriously. The Courts do. If NMCD conceals or destroys evidence after receiving the Preservation Letter, the Courts can and have ordered spoliation sanctions against NMCD. At a minimum, the sanctions will include a presumption that the evidence destroyed was favorable to the inmate. That is what the jury will be told. In the extreme case of sanctions, a Court can issue summary judgement on the issues at hand related to the evidence destroyed or in very rare circumstances, the entire case can be defaulted.

Step 4: Inspection of Public Records Act Requests

The Inspection of Public Records Act (IPRA) goes hand in hand with the preservation of evidence letter. You can get a lot of information with an Inspection of Public Records Act request including the entire inmate file which should include the grievance file, disciplinary file and location history. However, we ask for these independently as well. The expectation is that the inmate file will be incomplete, but it is a start. If NMCD refuses to provide the inmate file, file an IPRA lawsuit. NMCD has no defense for refusal to provide public records. Statutory damages are up to $100/day for violation of IPRA.

Step 5: Collect Medical Records

It should be noted that medical records cannot be collected via IPRA. It would be a violation of patient privacy laws. In order to obtain inmate medical records, whether NMCD or outside medical records, a HIPAA release is needed. As with all things NMCD, it should be expected that a full set of medical records will not be provided. This is a topic unto itself but suffice it to say that just obtaining a full set of medical records can be a battle all its own.

Contact an Attorney Experienced with Prison and Jail Lawsuits

These cases are very complex and difficult. If the case of your imprisoned loved one has merit and there are severe injuries as a result of NMCD’s misconduct, it is important to seek experienced legal counsel. Collins & Collins, P.C. has filed numerous suits against NMCD and its contractors. There is no end in site due to the extreme cruelty, callousness, neglect and flat out incompetence of NMCD and its contractors. We will be glad to review your file to figure out if there is a case. In cases that get past the initial screening, this involves extensive investigation of the facts. In the case of prison and jail medical malpractice claims which is primarily what the firm handles, it also involves a careful review of the medical records.

Contact Collins & Collins, P.C. for a review of your case.

In late April 2021, the Associated Press reported that Centurion Healthcare of New Mexico has prematurely terminated its contract with the Bernalillo County Metropolitan Detention Center (MDC). Centurion signed a 4-year contract with MDC that was to run until December 31, 2022. It is not clear why Centurion decided to end the contract early, but the recently passed New Mexico Civil Rights Act likely contributed to the termination.

Deaths at MDC Under Centurion Medical Care

According to the press report, there were 9 deaths at MDC over the course of one year, although it was not stated during which year the deaths occurred. Among the 9 deaths at MDC, 6 deaths were related to detox from drugs or alcohol. Collins & Collins, P.C. is investigating a number of issues related to these 6 deaths for a number of reasons. First and foremost, Collins & Collins, P.C. is very interested in the detox deaths because the firm is representing the family of one of those deceased inmates.

Deaths at MDC Not the Whole Story

Deaths at MDC are just that – they do not tell the whole story. Simply put, they are deaths that occurred at the MDC facility. These do not include deaths that occurred after leaving the facility upon transfer to a local hospital or upon release from jail. Because of this, it is exceedingly difficult to determine the actual death toll related to poor medical care at MDC or any New Mexico prison or jail. It is inexcusable that the neither the New Mexico Health and Human Services Department (HSD) nor New Mexico Corrections Department (NMCD) keep track of this vital statistic. To make matters more difficult, local hospitals have stated that they do not track whether a death at their hospital facilities involved an inmate transfer from prison or jail. Collins & Collins, P.C. continues to pursue this information and will obtain it.

Centurion Performance with New Mexico Corrections Department (NMCD)

What Collins & Collins, P.C. does know is that over 70 inmates died of medically related causes at NMCD facilities during the term of the 3 year contract with NMCD. The firm also knows that deaths reported by the New Mexico Office of the Medical Investigator do not track deaths that occur outside NMCD facilities. The OMI is required to perform investigations only on those inmates that die within a prison facility. Collins & Collins, P.C. has yet to determine how many medically related deaths occurred after transfer of an NMCD inmate to an outside hospital, but we keep searching and will eventually find the answers that we have been looking for.

Finally, we all know that Centurion ended its contract with NMCD early as well. That says something.

New Mexico Civil Rights Act is Game Changer of Inmate Medical Negligence Claims

Under the New Mexico Civil Rights Act, inmates can now seek up to $2 million in state court cases for prison and jail medical malpractice lawsuits. This is addition to the $700,000.00 allowable under the New Mexico Tort Claims Act.

The new $2 million caps on damages under the Civil Rights Act merit discussion. In claims against Centurion for medical malpractice claims on behalf of NMCD inmates, the courts have ruled that Centurion and presumably other NMCD medical providers have the protection of the New Mexico Tort Claims Act (TCA) which not only sets the absurdly low $700,000.00 cap on liability but also protects the medical providers against punitive damages. Punitive damages are awarded for particularly atrocious misconduct which Collins & Collins, P.C. believes exists in all the cases it has filed against Centurion and NMCD. New Mexico is generous with punitive damages where they can be double digit multiples of compensatory damages. Punitive damages, if allowed, arguably would have improved prison medical care long ago.

The new $2 million cap addresses this issue for all but the largest, most horrendous prison medical neglect of NMCD inmates. Interestingly enough, TCA protections for prison medical providers arguably apply only to NMCD medical contractors. Collins & Collins, P.C. will be testing this in the MDC detox death case that it will soon be filing against MDC and Centurion.

Contact Collins & Collins, P.C. If You or a Loved One has Been Harmed by Centurion

As previously mentioned, Collins & Collins, P.C. has filed numerous suits against Centurion. The firm has investigated many more. During these investigations, Collins & Collins, P.C. has gathered extensive evidence on Centurion medical neglect of New Mexico inmates. Some or all of this evidence will used to gain justice for you, your loved one and your family.

The effective date for the New Mexico Civil Rights Act is Jul 1, 2021. More important for the rights of New Mexico’s prisoners and inmates is the prospective application of the New Mexico Civil Rights Act. Section 12 of the Act states:

SECTION 12. PROSPECTIVE APPLICATION.–Claims arising solely from acts or omissions that occurred prior to July 1, 2021 may not be brought pursuant to the New Mexico Civil Rights Act.

Acts or Omissions Occurring After July 1, 2021

First, acts means negligent acts of medical care such as giving an inmate the wrong medication. Omissions are much more common in New Mexico prisons and jails and often have much more severe consequences. Omissions include failure to diagnose and failure to treat medical conditions. The failure to diagnose and treat inmate medical conditions is the norm rather than the exception in NMCD facilities in particular with which Collins & Collins, P.C. has significant experience.

Having defined “acts and omissions”, Section 12 seems plain and simple. Only lawsuits for acts and omissions violating the civil rights of inmates that occur after July 1, 2021 may be filed in state court under the New Mexico Civil Rights Act.

Section 12 seems pretty straightforward, but it is a little more complicated than it appears.

Continuing Reckless Indifference to the Medical Needs of Inmates

Constitutional violations can be continuing in nature. That is the constitutional violations are ongoing. In the context of NMCD, failure to provide constitutionally adequate medical care is routine and daily. It can go on for weeks, months and even years.

Last Date of Act of Omission Controls

Although there is not yet case-law (court cases) dealing with the New Mexico Civil Rights Act, the law of negligence generally provides that the date of the last occurrence of a negligent act or omission will be the trigger for any deadlines such as the statute of limitations. This principle should apply equally to the act or omission date of civil rights violations.

Chronic Health Conditions

Again, chronic health conditions include illnesses that continue over time such as Hepatitis C, diabetes, heart disease and cancer. These are the most common chronic diseases in New Mexico prisons and jails.

The question will be easily dealt with in cases involving failure to treat chronic conditions. Unfortunately, NMCD and its contractors will medically neglect an inmate with chronic medical conditions for many weeks, months and even years. Under the New Mexico Civil Rights Act, the inmate would not be able to sue on the acts or omissions that occur prior to July 1, 2021. However, those acts and omissions will undoubtedly continue well into the future until the inmate’s medical condition has become critical or deadly forcing NMCD and its contractors to transport the inmate a hospital for treatment.

The point is that NMCD and is contractors will not get off the hook simply because they have been grossly reckless and indifferent to the inmate’s medical condition for weeks, months or years prior to July 1, 2021. They will be subject to civil rights claims under the New Mexico Civil Rights Act for recklessly indifferent ongoing failures to diagnose and/or treat chronic medical conditions.

Emergent Medical Conditions

Emergent medical conditions include injuries and illnesses that progress much more rapidly. The two are often related in New Mexico’s prisons and jails. Injuries can occur in innumerable ways in prisons and jails, just as they occur outside those facilities. Some of those injuries may themselves be life-threatening. With others, what would be a minor injury outside a prison or jail can become life-threatening.

For instance, an inmate might fall and break his or her ribs. There is not a lot one can do to repair broken ribs. But broken ribs should be monitored for infection and other adverse health consequences. This is especially true in prisons and jails where infections, including MRSA, run rampant. As a consequence of broken ribs, the inmate might then develop pneumonia which can become deadly. Pneumonia then leads to extreme risks of contracting COVID-19 . Even a casual review of the press will illustrate that NMCD took very little action to protect inmates from COVID-19 including inmates such as one suffering from pneumonia. Due to high susceptibility to contracting the virus and the reckless indifference of NMCD to the dangers of COVID-19 to inmates, the inmate may as a result contract COVID-19 and subsequently die. Thus, the failure to treat the broken ribs prior to July 1, 2021 may lead to a chain of events ending with the inmate’s death after that date.

The same pattern holds true for infections. For instance, an infection can begin with a minor scratch or even a pimple. Infections may progress very slowly or very rapidly necessitating immediate preventative and effective antibiotics. Whether the infection is slow or rapidly moving, NMCD and its medical contractors will almost certainly it seems ignore the infection. These simple infections can be stopped in their tracks with basic medical care. Unfortunately, this is not the course taken in the many cases that Collins & Collins, P.C. has filed lawsuits on or in many others under review.

Instead, these simple infections are allowed to grow life-threatening and far too often are deadly. In the lawsuits filed by Collins & Collins, P.C. the infections are allowed to spread the bones, spines and even the hearts of NMCD inmates. As suggested, the progression of infections can take weeks or months which means that the first omissions in violation of the civil rights of NMCD inmates may occur prior to July 1, 2021 but continue past that date.

NMCD and its medical contractors will not get off the hook for the civil rights violations that continue past July 1, 2021 simply because the constitutionally violative acts and omissions have been going on for weeks or months.

Deadlines on Prison Medical Malpractice Claims

The deadlines to trip up prisoner claims are many:

Grievance procedure 5-day deadline,
Tort Claims Act 90-day Tort Claims Notice deadline,
New Mexico Civil Rights 1-year Notice deadline,
Two year statute of limitations on simply medical malpractice claims under the Tort Claims Act, and
Three year statute of limitations on claims under the New Mexico Civil Rights Act

The first two deadlines are the ones that most frequently trip up inmates. They are extremely short and unforgiving. It is very important to contact an attorney experienced in prison medical malpractice claims immediately if you or a loved one has suffered serious injury or harm and suspect medical negligence as the cause.

House Bill 4, the New Mexico Civil Rights Act, was signed into law last week on April 7, 2021. The importance of its passage to the rights of New Mexico prison and jail inmates cannot be overstated. The Act does not go into effect until July 1, 2021. After July 1, it is a whole new ball game for prison and jail inmate medical malpractice lawsuits.

There will be a series of articles following this initial summary to address each individual section and how it will benefit the rights of New Mexico inmates and their families. The article below will provide a quick overview of the most important provisions of the Act so that inmates and their loved ones will know that help is on the way.

Act Applies to Medical Negligence Occurring After July 1, 2021

The Civil Rights Act applies only to actions or inactions in violation of inmate civil rights occurring after July 1, 2021. This is perhaps the most disappointing provision. Collins & Collins, P.C. is evaluating many cases of extreme medical neglect by New Mexico Corrections Department and its contractors. Unfortunately, none of those cases will benefit from the Civil Rights Act.

On the other hand, it is highly doubtful that either NMCD or its medical contractors are capable of improving medical care in NMCD facilities. Nor is NMCD inclined to improve medical care in its facilities even were it capable. The incompetence, cruelty and callousness of NMCD medical care has no bounds. Sadly, it is fully expected that the same extreme medical neglect will continue until NMCD is overhauled at the top which brings us to the last important and disappointing provisions of the Civil Rights Act.

Definition of Public Body

The New Mexico Civil Rights Act allows claims against “public bodies”. “Public Body” is defined very much like the definition of public body in the New Mexico Tort Claims Act. Under the Civil Rights Act, public body is defined as:

“state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political Subdivisions,…”

What this means to New Mexico inmates is that the Civil Rights Act applies to all New Mexico prisons and jails.

New Civil Rights Claims Under New Mexico Constitution

Many would be surprised to learn that until passage of the Civil Rights Act, there was no possibility for a New Mexico inmate to bring civil rights claims under the New Mexico Constitution. This was the case despite the fact that the New Mexico constitution, like the United States Constitution, provides for a basic bill of rights.

For purposes of inmate medical malpractice claims against prisons, jails and their medical contractors, the New Mexico Bill of Rights provides rights against cruel and unusual punishment (Article 13) and due process rights (Article 18). Prior to passage of the New Mexico Civil Rights Act, Articles 13 and 18 were mere words. There was no possibility of enforcing those rights in New Mexico Courts.

Instead, New Mexico inmates suffering extreme medical neglect, were forced to federal court to pursue constitutional claims. Inmate medical neglect claims no matter how extreme face virtually certain dismissal in federal courts due to the impossible burden of overcoming qualified immunity. After July 1, 2021, the New Mexico Constitution will finally have meaning for New Mexico inmates.

Ban on Qualified Immunity

Qualified immunity is the greatest abomination in the courts and is largely responsible for the horrendous violations of civil rights that we all routinely see on the nightly news. An end to qualified immunity is perhaps the most important aspect of the New Mexico Civil Rights Act. As mentioned, inmates suffering what may aptly be referred to as medical torture, have never had constitutional rights in state courts. Inmates were forced to federal court where qualified immunity would completely shut down their lawsuits no matter how horrible the medical neglect.

Qualified immunity has literally been a license to kill for prisons, jails, their employees, staff and contractors. This has allowed the daily atrocities committed against New Mexico inmates to go on unabated. There simply was no accountability. The Civil Rights Act will take one big step toward accountability. It is not perfect, but It should make prisons, jails and their medical contractors rethink their approach to inmate medical care. If it doesn’t, they will pay a price they have largely escaped in the past.

Recovery of Attorney Fees and Costs

Recovery of attorney fees and costs is very important. in civil rights claims. The recovery of attorney fees and costs is not so important for big cases against the New Mexico prisons and jails. It is far more important to those cases where gross medical neglect has occurred but somehow the inmate managed to avoid severe and permanent harm, or death.

Unfortunately, without severe harm or death, the potential financial recovery under state law for simple medical malpractice was often too small to justify attorney involvement. This is because most attorneys, including Collins & Collins, P.C., take inmate medical negligence cases on contingency meaning they take a percentage of a settlement or judgment.

Inmate medical negligence claims are very expensive to pursue. In addition to the costs of the litigation, these cases take enormous attorney and staff time. Simply put, attorneys could not take on state court medical malpractice cases nor would the cases survive in federal court where attorney fees and costs could theoretically be recovered.

Increase in Caps on Liability

The increase in potential financial liability to public bodies is extremely important for inmate rights. Prior to passage of the Civil Rights Act, the New Mexico Tort Claims Act’s limits on recovery in state court for medical malpractice was $400,000 for wrongful death and $700.000 for severe, permanent harm requiring future medical care.

The new limits (caps) are $2 million. In addition, recovery under the Civil Rights Act is not exclusive of other remedies. This means that recovery under the Tort Claims Act is still available allowing up to $2.7 million recovery per “occurrence”. Occurrence is not defined, and this will be very hotly contested in future court cases. The other caps issue that will be disputed is whether the caps apply to each defendant meaning that a separate cap would apply to NMCD and to its medical provider, and other NMCD contractors.

3 Year Statute of Limitations

The new 3-year statute of limitations is also very important. The New Mexico Tort Claims Act had a 2-year statute of limitations. However, there was also a Tort Claims Notice Requirement. The Tort Claims Act required a notice to an offending public body within 90 days of the medical negligence for personal injuries and 180 days for wrongful death.

The new 3-year statute of limitations merits additional discussion:

1. There is no Tort Claims Notice requirement for civil rights violations. under the New Mexico Civil Rights Act. There is simply a 3-year statute of limitations.

2. A Tort Claims Notice should still be sent if possible, however, because without it, an inmate cannot gain the potential additional $700,000 recovery under the Tort Claims Act.

3. Inmates must still file medical grievances under New Mexico law. Failure to do so could result in dismissal of medical negligence claims even in state court for civil rights violations.

4. The Civil Rights Act has its own notice provisions.

Required Notice of Claims

Although the 60- or 90-day Tort Claims Notice requirement will no longer be required under the Civil Rights Act, there is a notice requirement. The new requirement is one year from the date of the civil rights violation for personal injury claims and 18 months for wrongful death claims.

There are a couple of exceptions to the notice requirement. First, no notice is required if the public body had “actual knowledge” of the occurrence. Second, the one-year requirement is tolled for up to one year while the injured inmate is incapacitated.

Actual knowledge will be another point of contention that will be hotly litigated in the future. For instance, does a Tort Claims Notice suffice? How about a medial grievance?

Waiver of Sovereign Immunity

The New Mexico Tort Claims Act provided for immunity for lawsuits against public bodies. There were very limited exceptions to sovereign immunity under which inmates could file lawsuits. There is no sovereign immunity under the Civil Rights Act.

Collins & Collins, P.C. has filed many lawsuits against NMCD and its medical contractors that included claims that ended up getting dismissed due to sovereign immunity under the New Mexico Tort Claims Act. The gloves are off as of July 1, 2021. For any acts of reckless disregard and deliberate indifference to inmate medical needs occurring after July 1, all of those claims will be added back in.

Indemnification of Bad Actors Limits Full Accountability

This brings us to the next big disappointment under the Civil Rights Act is that public bodies will indemnify the individual bad actors committing the atrocities against New Mexico inmates. This is not so much a problem for most public bodies. It is a huge problem when referring to the New Mexico Corrections Department (NMCD).

Real change will not occur until these individuals are held individually accountable without taxpayers bailing them out in the end.

Civil Rights Act is Game Changer for Inmate Medical Malpractice Claims

The medical malpractice lawsuits filed by Collins & Collins, P.C. against New Mexico Corrections Department (NMCD) and its medical contractors involve extreme medical neglect, intentional cruelty, absolute callousness toward the illnesses of inmates, and deliberate indifference to inmate medical needs. They all involve violations of the New Mexico Constitution’s ban on cruel and unusual punishment. In most cases, they also involved violations of due process.

In short, the medical negligence in NMCD facilities is so extreme that cases occurring after July 1, 2021 will almost certainly be actionable under the Civil Rights Act in New Mexico state courts. This will change everything for inmates and their families. Collins & Collins, P.C. intends to do everything it can to insure that it does.

Spoliation of Evidence

Spoliation is the technical term used by lawyers and judges for the concealment and/or destruction of evidence. Prisons are a black box when it comes to the evidence within its walls. Unlike a normal public institution, prisons are extremely secretive. This secrecy allows a wide range of atrocities against inmates with no accountability for the prison or jail. In fact, the very purpose of the secrecy is to avoid accountability.

Federal and State Regulations for Medical Record-Keeping

There are strict medical record-keeping regulations for all medical providers with the exception of medical care provided within prison walls. The Health Insurance Portability and Accountability Act (HIPAA) and the Health Insurance Portability and Accountability Act (HITECH) are the two most important acts related to medical record-keeping. Both have very strict legally mandated guidelines on medical record-keeping. Likewise, there are strict financial and even criminal penalties for their breach.

HITECH in particular calls for electronic health records (EHR). EHR is critical for patient care for a number of reasons. In fact, without EHR, the “Portability and Accountability” in HIPAA is impossible. Paper records simply cannot be verified as accurate and complete. Paper records may easily be modified, altered, erased and/or destroyed. EHR protect against the alteration and destruction of medical records. Naturally, despite HIPAA and HITECH has chosen to stick with paper medical records. This takes us back to premise which is that NMCD wishes to avoid accountability which is in the very title of HIPAA.

HITECH Compliance Under NMCD Contracts with Medical Contractors

Remarkably, the contract between NMCD and its previous medical provider required compliance with HITECH compliant medical records meaning that the contractor was to implement an electronic medical record-keeping system. This was never done.

Collins & Collins, P.C. has filed numerous medical malpractice lawsuits over the last few years. In each lawsuit, the lack of electronic health records has been alleged in the lawsuits. In fact, lack of an electronic health records system is a major element of the many medical negligence counts against NMCD. In a case involving any other medical provider outside of a prison or jail, non-compliance with HITECH Act would be negligence per se meaning that the lack of compliance would be sufficient for a finding of negligence.

Consistent with NMCD’s complete lack of respect for medical health of inmates, NMCD’s decided to remove the HITECH compliance requirement completely from the contract with the new medical provider. Interestingly, the contract still calls for electronic health records but no EHR has been implemented. NMCD seems intent on sticking with paper medical records.

Why is this?

Lack of EHR Allows Destruction of Evidence

The answer is simple. Paper records can be manipulated, altered and destroyed at will. Integrity of the medical records is entirely reliant on the integrity of the providers entering the records and the medical records custodian. The medical records custodian is in fact NMCD itself. This cannot be overemphasized. NMCD is responsible for the storage and maintenance of NMCD inmate medical records. This is so even once it is clear that there are legal claims for medical negligence against NMCD and its medical contractors.

It is fairly well established that NMCD cannot be trusted. NMCD is prone to conceal, alter, falsify and destroy records as a rule. Despite being caught and sanctioned for spoliation, NMCD continues to engage in the behavior. Decisions are being made at the highest levels of NMCD that have determined that the risks of spoliation sanctions are worth taking. After all, NMCD does not get caught every time. Many times, they get away with it. And when they do get caught, the consequences are often trivial.

Spoliation of Medical Records Difficult with EHR

It is extremely difficult to alter, manipulate, conceal or destroy medical records with an effective EHR in place. EHR systems have many protective measures in place that provide for auditing of medical records. These audit functions make it relatively easy to determine if the medical records are complete and accurate. This means it is easy to determine whether records have been removed or altered. Not only that, but the audit tools will tell when, where and by whom the medical records were altered or deleted. An audit log will tell a reviewer of the medical records everything necessary to determine if the medical records for a patient are complete and accurate. NMCD clearly does not welcome this level of scrutiny. Use of paper records only which is almost too absurd to utter out loud with modern medicine, allows NMCD at its will to modify, alter, conceal and destroy inmate medical records. That is the whole point of sticking with paper medical records.

Motivation for NMCD Paper Medical Records Simple

It is no wonder that NMCD has determined to stick with paper records. NMCD has a penchant for altering and destroying evidence. EHR would prevent the destruction of medical evidence. NMCD will fight and/or ignore every measure including federally mandated medical record-keeping that would in any way result in full accountability for the medical atrocities that inmates suffer routinely in NMCD facilities.

It really is as simple as that.