The New Mexico Tort Claims Act creates a number of protections for governmental entities against personal injury claims .  This protection extends to all governmental entities including medical providers, schools, public buildings, public employees and so on.

Among these protections is the cap on damages.

What is the Cap on Damages?

First, an explanation of “caps” might be in order.  A cap on damages sets the limits of liability for the governmental entity.  In other words, the injured person cannot recover more than the cap in a lawsuit against a governmental entity.

Under the New Mexico Tort Claims Act, NMSA § 41-4-19, the caps are set at a max of $700,000.  The caps are broken down as follows:

1)   $300,000 for all past and future medical and medically related expenses, and

2)   $400,000 for all damages other than medical and medically related expenses.

This means that recovery is limited to $700,000 under the Tort Claims Act for any personal injury or wrongful death claim no matter what the true level of injuries, harm, or damages.

It should be noted, in light of the recent coverage on the Albuquerque Police Department, that these caps do not apply to civil rights claims, which fall under federal law.

Insufficiency of the Caps

The $700,000 caps are often sorely deficient in compensating a victim of governmental negligence.  This can be seen in what is capped.

Cap on Medical Expense

The $300,000 cap on medical expense, both past and future, will be severely insufficient in cases of serious personal injury. Medical expenses can easily exceed $300,000 before any consideration of future medical expenses.  In cases of serious and permanent injury, future medical expenses can literally go into the millions of dollars.

One might reasonably ask who is left to carry the burden of these costs if the governmental entity is allowed to escape liability.  Of course, the answer is the injured person and his or her family.  This burden will and does cause the financial ruin of the innocent victim and family.

Cap on Other Damages

The remaining $400,000 cap applies to all other damages arising out of the personal injuries or wrongful death.

The cap clearly applies to the much maligned “pain and suffering” damages.  It also applies to much more concrete damages such as lost income.

Again, in cases involving permanent and debilitating injuries or wrongful death, the loss of income over a lifetime of earnings can dwarf the $400,000 cap.  The math is not terribly difficult taking into consideration income earning history, income potential and projected work-life duration.

Caps are Unfair but Enforceable

Only those unfortunate folks who find themselves in this situation can truly appreciate the unfairness of the caps.  The fact that one’s own government can largely escape liability for harm to a citizen is in itself offensive.

Even more offensive is the fact that the government can dodge full responsibility for the harm that it causes with disastrous and permanent personal and financial consequences to the victim and the family.

Despite the unfairness of the caps, they are fully enforceable.  The caps have stood up to challenge after challenge in the courts.  They will not go away or even be raised to more reasonable levels without legislative action.  And this will come only when the public demands it.

It can only be hoped that the public will demand the change necessary to right this injustice.

Cumulative Conduct Can Lead to Punitive Damages in Medical MalpracticeMedical care will often include a number of different medical care providers employed by the hospital or other facility. These employees include doctors, physician assistants, nurses and other staff. Medical negligence will often stem from and be aggravated by the collective action of all these various employees and agents of the medical care facility.

It is clear that each individual provider can be held liable for compensatory and punitive damages for his own negligence. The question is how to deal with the collective action of the providers. More specifically, how does the cumulative conduct of these providers play into punitive damages In New Mexico?

High Bar for Punitive Damages

The bar for punitive damages is pretty high in New Mexico. The New Mexico Jury Instruction, 13-1827, requires malicious, willful, reckless, or wanton conduct on the part of the provider for an award of punitive damages. It may seem that this is easily met when you have been badly injured by medical negligence, but these standards are actually very high.

UJI 13-1827 defines the requisite conduct as follows:

“Malicious conduct is the intentional doing of a wrongful act with knowledge that the act was wrongful.
Willful conduct is the intentional doing of an act with knowledge that harm may result.
Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness.
Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person‘s [rights] [safety].”

Cumulative Conduct in Determination of Punitive Damages

Because the standard is so high, each individual employee provider‘s own conduct may not reach the high bar for punitive damages. However, the conduct of the providers taken collectively may reach the level necessary for punitive damage awards.

The theory of cumulative conduct for an award of punitive damages is set out in the 1994 New Mexico Supreme Court case of Clay v. Ferrellgas. It was applied specifically to medical malpractice cases in the 2011 New Mexico Court of Appeals case of Grassie v. Roswell General Hospital.

Drawing from Clay, the Court in Grassie stated that:

“The cumulative conduct theory provides that an award of punitive damages against a corporation may be based on “the actions of the employees [viewed] in the aggregate [in order] to determine whether [the employer corporation] had the requisite culpable mental state because of the cumulative conduct of the employees.”

The court refuted the defendant‘s argument that the only basis for an employer‘s liability was for direct or vicarious liability as set forth in UJI 13-1827 which provides that the employee must be acting with actual authority (generally managerial) or alternatively that the employer ratified or authorized the conduct. The defendant argued that the jury instruction included no mention of cumulative conduct.

Law Need Not be Incorporated into Jury Instructions to Be Binding

The Court stated that just because a theory that has been recognized by the New Mexico Supreme Court has not been incorporated into the jury instructions does not mean it is therefore invalid and non-binding.

The Disputed Jury Instruction

The district court, over the objections of the defendant, issued the following jury instruction:
“If you find that the combined acts or omissions of Pamela Hayes Rodriguez, and/or Brian Miller, as employees, and [Dr.] Collins, as the apparent agent, of [Hospital] amounted to willful, reckless, or wanton conduct, you may award punitive damages against [Hospital].”

Prior to Clay, for punitive damages against a company, it had to be shown that the employee was exercising managerial control or that the employer “ratified, accepted, or acquiesced” in the employee‘s conduct.

Culpability of Employer Still Required

There must still be proof in some form of the employer‘s culpable state of mind. The Court did state that simple respondeat superior was insufficient. However, the cumulative conduct theory provides an alternative approach to the fairly narrow grounds of vicarious liability set forth in the jury instructions

The question then becomes what evidence of cumulative conduct may be considered in the award of punitive damages? The Court determined that the jury may consider background and contextual evidence.

Moreover, the background evidence of neglect on the part of individual employees need not establish proximate cause nor constitute a completed tort in and of itself. Instead, the collective cumulative conduct may be considered for a finding of “aggravated patient neglect.”

Why is it Important?

Clay and Grassie taken together are very important for injured patients. Without it, the medical care facility would simply pass the buck from one employee to the next with no accountability for its collective staff. In other words, the employer could simply say the employee had not authority to do what he or she did. Though medical malpractice cases remain difficult, this line of cases provides some relief to patients.

Perhaps more importantly, the cases hold the facilities fully accountable, even for punitive damages, for the collective actions of its employees and staff. This is in and of itself should go a long way toward promoting patient safety in New Mexico.


Related Reading:
Punitive Damages in New Mexico: What is Reasonable?
Caps on Punitive Damages: Great for Business, Bad for Everyone Else
Caps in New Mexico Medical Malpractice Claims Against the Government: No Wiggle Room for Multiple Beneficiaries

The New Mexico Court of Appeals recently upheld the caps on medical malpractice damages in the case of Salopek v. Friedman. The case addressed many issues related to medical malpractice claims in New Mexico. The discussion here is limited to the rulings related to caps on damages.

The cap was challenged on several grounds: violation of a right to trial by jury, violation of separation of powers, due process and equal protection. The Court struck down the challenges one by one. We focus here only on the right to jury trial.

There have been many challenges around the country with a few courts entertaining the argument that caps on damages violate the right to jury. Not surprisingly, the New Mexico Court of Appeals flatly refused the arguments. However, it was fairly remarkable how the Court arrived at its conclusions going so far as to say that there is no right to a jury trial in claims filed under the New Mexico Medical Malpractice Act.

New Mexico Medical Malpractice Act

The Medical Malpractice, NMSA §41-5-6(A, provide in relevant part:

“except for punitive damages and medical care and related benefits, the aggregate dollar amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice shall not exceed six hundred thousand dollars ($600,000) per occurrence.”

The Court set the burden high for the plaintiff stating that there was a “long-standing presumption that acts of the Legislature are constitutional and that challenges must establish unconstitutionality beyond all reasonable doubt.”

History of Medical Malpractice Act Discussed

In support of its position, the court discussed the history behind the passage of the Medical Malpractice Act. The Court cited “medical malpractice crisis” as the engine behind the Act with its purposed being “to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico.”

Of course, this so-called crisis turns out to be pure mythology. Yet it remains the impetus behind the continuation of the caps both in the courts and Legislature. It seemed to play an important role in this decision.

NO Right to a Jury Trial!

The Court acknowledged the “inviolate right” to a jury under Article II, Section 12 of the New Mexico Constitution. However, it stated that for the right to attach, the right must first exist under the given circumstances.

The Court then cited the many protections for medical providers under the Act not present at common law. To make a long story short, the conclusion from this discussion was that there was no right to a jury trial on claims brought under the Medical Malpractice Act.

To understand how the Court arrived at this conclusion, it is best to read the Court‘s own language:

“where the Legislature creates a right of action pursuant to a special statutory proceeding, there is no right to a jury trial under our constitution unless the statute so provides… Thus, the statutory cap limiting damage awards for anything other than punitive damages, medical care, and related benefits from exceeding $600,000 does not infringe or violate Plaintiff‘s constitutional right to a jury trial under Article II, Section 12 of the New Mexico Constitution.”

In short, there is no right to a jury under the Medical Malpractice Act because the Act provided for no such right. Because there is no right to a jury, the caps on damages cannot violate that right.

Further Appeal

The sweeping language in the opinion is rather problematic. For instance, there are those that would like to pass legislation that would limit an injured patient‘s rights to a hearing before a medical review panel.

Presumably this is not what the Court intended. In fact, many of the defendant‘s challenges to the jury award were denied. It is difficult to balance the different portions of the opinion. Further appeal on both sides seems very likely.


Related Readings:
Caps on Medical Malpractice Damages Do Not Lower Insurance Premiums or Healthcare Costs
The Myth of the Medical Malpractice Crisis Lives On While Insurance Companies Earn Record Profits
The Myth of the Frivolous Medical Malpractice Lawsuit

The recent case of Salopek v. Friedman from the New Mexico Court of Appeals addressed a host of very important issues in a New Mexico medical malpractice case and personal injury law more generally.

Procedurally, the jury awarded the plaintiff $1,000,000 on his claim for medical negligence. By virtue of the cap on damages under the New Mexico Medical Malpractice Act, the award was reduced to $600,000 by the Court.

The Defendant appealed on a number of grounds. Of import to this discussion are the first two. First, he argued that the court erred in its jury instruction on duty. Second, he argued the court issued an incorrect jury instruction on damages the “eggshell plaintiff” rule.

The plaintiff appealed on a number of grounds related to the caps on damages under the New Mexico Medical Malpractice Act. In short, the Court upheld the caps. This is a sore topic yet a discussion for another day.

Each of the grounds for appeal by both the defendant and the plaintiff raise numerous interesting and rather complex issues surrounding medical malpractice, personal injury law, damages, and the right to a jury trial.

The facts are rather complex. However, for purposes of this discussion, they can be boiled down to the following. The injured patient (plaintiff) went in for a colonoscopy. A genetic trait predisposed him to cancer requiring biannual colonoscopies. During the procedure, the doctor (defendant) perforated his colon. Upon discovery of the perforation, the doctor went in to locate and repair the perforation.

Further damage was caused because the perforation had grown due to the delay. As a result, the perforation could not be repaired. The patient was required to undergo a number of additional surgeries as a result of the original perforation and subsequent failure to repair it. He suffered serious and permanent physical injuries as a result.

Of note, it was not disputed on appeal that the original failure constituted negligence. Instead, the doctor appealed on other grounds related to the damages that were awarded. More interesting still, the doctor appealed the damages even though they were reduced by the court pursuant to the New Mexico Malpractice Act. Again, a sore topic.

We will address only the base issues in the case here. Each merits a follow up discussion as the case hits on very important issues.

Duty of Care

The doctor argued that the court should have ruled as a matter of law on the issue of the doctor‘s duty toward the patient. Specially, the doctor argued correctly that there is no duty to protect against unforeseeable consequences. However, the court disagreed that the complications from the initial medical negligence were unforeseeable.

The court ruled that the additional surgeries as well as ensuing complications, which were partly the result of genetic predispositions, were foreseeable. Therefore, the doctor did in fact have a duty to the patient to protect against these outcomes.

That duty was not severed by the subsequent doctor-patient relationships. In fact, those relationships were the result of the original negligent act necessitating remediation of the initial and ensuing injuries set into motion by that negligence.

Elective Procedure

Part of the doctor‘s argument on duty suggested that the subsequent procedures were elective in nature. The court did not buy this rather ludicrous argument which suggested that because there were several surgical options available to the patient, the one chosen was elective.

The patient, with the guidance of his new surgeon, decided on the safest surgical course of action to repair the damage caused by the original negligence. This decision was complicated by the patient‘s genetic predisposition which raised risk factors associated with each option.

The court rightly recognized that choosing between several surgical options to remediate the initial damages does not make the ultimate course of action elective.

Damages and the Eggshell Plaintiff

The doctor also tried to escape liability for the damages based upon the patient‘s predispositions. This argument failed under the eggshell plaintiff rule.

The court rightly noted that the entire basis for the eggshell plaintiff rule was that the defendant be held liable for all damages caused or set into motion even though the injured plaintiff is unusually susceptible to harm because of his underlying condition.

The court stated the rule as follows:

“This means that the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health”

The doctor basically argued that he be held responsible only for the direct damage that he caused and not any aggravated damages resulting from the underlying condition.

The court shot this down since in would in effect negate the entire longstanding eggshell plaintiff rule. No such apportionment is required under the law and such an apportionment would completely defet and nullify the eggshell plaintiff rule.

This discussion only scratches the surface of the opinion. However, these issues are very important in medical malpractice cases (and other personal injury cases). In medical malpractice, patients often come with underlying conditions. They may have a host of illnesses or other predispositions that call for additional care.

It would be a rather callous outcome to say that a doctor is free to behave negligently in these cases because of vulnerabilities of the patient. Worse yet, in this particular case and others like it, it would be pretty outrageous to allow a doctor to escape liability for all subsequent harm resulting from the chain of events set into motion by his or her original negligence simply by virtue of the fact that the patient has been handed off to another doctor by necessity as a result of that very negligence.

The decision was the right one in most respects. Where it is disappointing and where it will likely face additional appeals if New Mexico follows the path of many other states, is the New Mexico Medical Malpractice Act‘s cap on damages. This is a discussion for another day.


Related Readings:
Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim
Walking on Eggshells in New Mexico Personal Injury Cases
Caps on Medical Malpractice Damages Do Not Lower Insurance Premiums or Healthcare Costs

We recently posted an article on the requirement that liability must be found before damages will be awarded. One element of liability is causation. This can be a complex issue even for law students. However, the basics are pretty straightforward. But as they say, the devil is in details.

First, “causation” means exactly what it sounds like. It is the act, omission or condition (hereinafter the “thing”) that caused the injuries or harm. However, it is important to know that the thing that caused the injuries or harm need not be the only cause. There can be multiple contributory factors that led to the injuries.

However, even though there might be multiple contributory factors, it must be the case that the injuries would not have occurred but for the thing alleged to have caused them. If the injuries would have occurred with or without it, then it is not a cause of the injuries under the New Mexico Jury Instructions.

Where it gets more complicated is in cases of independent intervening causation. This would be the case when a course of action or chain of events is set into motion, but an independent intervening cause actually causes the injuries. It is not the case that the original act did not cause the injury in the sense that the chain of events was set into motion, it is that there was a completely “unforeseeable force” that was neither in operation nor expected at the time of the original action. In New Mexico, independent intervening cause is rare and would typically be found, if at all, only where cause is interrupted by a force of nature, an intentional tort or criminal behavior.

For instance, a person injured in an auto accident may need to get medical treatment. During that medical treatment, the person may be injured further by medical negligence. The medical negligence is not, under New Mexico law, an independent intervening cause that would sever liability for the original negligent driver. In fact, it has been stated that medical negligence happens frequently enough that it is in fact foreseeable making the original negligent party at least in part responsible for the subsequent injuries.

On a related note, New Mexico is a pure comparative law state. This means that the liability for the injuries will be apportioned between the various parties that are responsible for the injuries. Unlike states following a contributory negligence standard, this means that the injured person might even be partially responsible for his or her injuries and still recover for that portion of the injuries caused by another.

However, in the end, there must be causation. The thing that is alleged to have caused the injuries must be “reasonably connected as a significant link to the injury…” In other words, the causal link cannot be so attenuated that it bears no reasonable connection to the injury despite the fact that it somehow occurred close in time or place or was otherwise a link in the chain of events leading up the injuries.

Causation is often pretty easy to determine. However, it can quickly become quite complicated in a number of ways depending on the circumstances of the accident and the victim. These complications are too numerous to address here, but suffice it to say that it is highly advisable to seek the guidance of an experienced personal injury attorney in any case involving serious personal injuries or wrongful death.


Related Reading:
Liability Before Damages – Sometimes Accidents Just Happen!
Host Liability for Holiday Parties in New Mexico
Sorting Out Responsibility in a New Mexico Premises Liability Claim

Collins & Collins, P.C.
Albuquerque Attorneys

Accidents are a fact of life. They happen in every aspect of life from home, to the road, to work and every point in between. Sometimes, they result of the negligence of another. Other times, there is nobody to blame. Accidents just happen.

When people get seriously injured, there are all kinds of harms that ensue. In a personal injury action, these are referred to as damages. There are a wide variety of damages that may be recovered in a personal injury lawsuit.

Most prominent among these are medical expenses and lost wages, both past and future. However, there are many others depending upon the circumstances of the injured person.

It is perhaps natural when faced with what can be financially crippling injuries to want to hold someone accountable. After all, the medical expenses alone can be overwhelming. These can be enormous and follow an injured person and his or her family for years to come. Other living expenses and obligations continue as well. Life does not stand still when someone is injured.

In those cases where someone else‘s negligence caused the injuries, there may be light at the end of the tunnel. However, it is important to understand that without liability which typically requires negligence, there simply is no possible recovery. This is very hard to accept when faced with serious personal injuries, but it is the reality.

In fact, New Mexico has a jury instruction that is issued in every personal injury case that directly deals with the issue. The jury instruction, 13-1801, states, “You are not to engage in any discussion of damages unless you have first determined that there is liability…”

This rule and jury instruction is to protect against awards based upon emotional reactions to severe injuries, despite the absence of liability. No matter how bad the damages/injuries may be, there must first be liability to obtain an award.

This means that the jury cannot award damages without first finding liability. This means also that insurance companies are unlikely to settle a claim without a showing of liability. It likewise means that insurance companies will often hotly dispute liability.

Liability typically requires some level of negligence. There are a few exceptions including strict liability claims and no-fault medical payment coverage that are beyond the scope of this article. However, in the great majority of cases, there must be negligence.

In addition, there must be fault or what is termed causation. This means that the negligence actually caused the injury. After all, there might be someone behaving negligently, but that negligence had nothing to do with the accident. There may even be negligence and an accident, but no causation for the injuries. This comes up frequently with the pre-existing injuries.

This is a rather simplistic explanation of establishing liability before getting to damages. However, the point is fairly straightforward which is a person cannot be held liable for something that they did not cause or could not prevent.

In sum, the first challenge in any personal injury clam is to establish liability. This can be a rather complex determination requiring the assistance of an experienced personal injury attorney.


Related Reading:
Sorting Out Responsibility in a New Mexico Premises Liability Claim
Payment of Medical Expense Is Not an Admission of Liability in New Mexico
Possible Premises Liability Even In Cases of Obvious Hazards

Collins & Collins, P.C.
Albuquerque Attorneys

By law, Medicare will claim a lien against any personal injury settlement for medical expenses paid for treatment related to those injuries. In addition, Medicare will claim a lien on future medical expenses related to future treatment for those injuries. The lien on future medical expenses is the Medicare Set-Aside.

It is extremely important to begin working with Medicare on the lien issues well in advance of any settlement. Medicare is often quite reasonable in addressing those liens. This is important for a number of reasons, not the least of which is the fact that Medicare often greatly overstates its liens, often including expenses related to medical conditions unrelated to or which pre-existed the accident.

The same holds true for future medical expenses. Medicare will often assert a blanket lien over the entire settlement amount. In cases where significant future medical expense is required, the future medical expense could actually exceed the amount of the settlement.

This is not that uncommon in cases of very serious injuries where significant and sometimes permanent medical treatment is required. However, there are numerous potential areas for negotiation with Medicare‘s over inclusive liens. For instance, in cases of serious personal injury, there are often very significant recoverable damages unrelated to medical expenses, either past of future. Medicare is not entitled to claim liens against settlement amounts that are unrelated to medical expenses paid or to be paid by Medicare.

Likewise, in cases involving serious personal injury, the actual settlement is often well below the value of the claim. This comes up in cases of underinsured drivers, underinsured property owners, damages caps in medical malpractice claims, tort claims caps, and so on. In these cases the medical expenses, past and future, may actually exceed the recovery.

In those cases, there are strong arguments that Medicare must take a pro rata reduction in its liens in proportion to the settlement amount and the actual value of the case. It would be patently unfair to allow Medicare to reap the benefits of an injured person‘s efforts to recover, while simply standing on the sideline awaiting payment in full on its claimed liens.

There will often be other grounds for negotiation of Medicare liens including the future set-asides beyond these two examples. Again, Medicare is often quite reasonable so long as the negotiations occur in advance of the final settlement, and most certainly before distribution of any funds. On the other hand, failure to address them in advance can be disastrous with huge potential fines to the injured person, his or her attorneys and even the insurance company.

In short, though Medicare does have rights to lien a personal injury settlement for set-asides for future medical treatment and expense, there are protections for an injured person. These are equitable in nature and Medicare more often than not will work out a fair and equitable outcome on its liens if properly approached to do so. If they are not approached, then naturally there may be a very different outcome.

If you have suffered personal injuries in an accident and there is a potential settlement, it is very important that you contact an attorney experienced in handling medical liens, including Medicare and Medicaid.


Related Reading:
Eleventh Circuit Addresses Medicare‘s Responsbilities in Lien Negotiation
Medicare/Medicaid Lien Reduction for Attorney Fees
10th Circuit Addresses Medicaid Lien Reduction in Personal Injury Settlements

Collins & Collins, P.C.
Albuquerque Attorneys

Say you have been injured in an accident and have settled your claim with the insurance company.

Down the road you discover you either still need additional medical care for your injuries, or you discover new injuries you were not aware of at the time of the settlement. Can that settlement agreement be “re-opened” or can you file another lawsuit for additional damages?

The answer is likely an emphatic “No”. Prior to settlement, and most definitely prior to issuing you a check, the insurance company or opposing attorney will insist on a settlement agreement. This is typically, in the absence of an agreement to the contrary, an agreement in full and final settlement of claims. It is generally impossible to attempt to collect for additional damages after a settlement agreement has been signed.

The reason for this is that the defendant, usually an insurance company, agreed to settle your claim and make payment to you in exchange for a full release from all past, present and/or future claims stemming from the incident. The settlement agreement you signed most certainly included language similar to the following:

[Y]ou agree to waive your future right to make a claim or sue for any and all claims associated with the incident being settled. This includes claims unknown at the time of the signing, or for the worsening of, or for unknown future medical effect or injuries arising out of the claim or incident.

This binding effect of a settlement agreement is one of the reasons that it can take so long to settle a personal injury claim. Before entering into a settlement agreement it is absolutely essential to completely understand the extent of your injuries, including the need, if any, for future medical care. Any “future medical expenses” must be projected and figured into the settlement amount. This should be done by your treating physician and must include the following:

1. The likelihood that you will need future medical care.

2. A thorough description of the type and extent of the care you will need.

3. An estimate of the cost of the care taking into consideration how long you may need care and your life expectancy if it is believed you will need ongoing care for the remainder of your life.

It may not seem fair that you cannot make additional claims down the road for future medical care or injuries that were unknown at the time you signed the settlement agreement. However, if a settlement agreement could easily be undone by one of the parties months or even years down the road, then the parties could never feel that the claim is truly settled. The incentive for parties to enter into settlement agreements might disappear.

Furthermore, settlement agreements are an essential part of our legal process. Without settlement agreements our court system would be bogged down with all manner of trials, including personal injury lawsuits. For this reason the courts depend on settlement agreements to maintain the integrity and efficiency of the judicial system.

Binding settlement agreements provide benefits to all parties involved. Keep in mind that careful preparation of your case before entering into a settlement agreement, including thorough documentation of all past, present and future damages, is your best insurance against later ending up disappointed with your settlement. An experienced personal injury attorney will be able to walk you through this process to insure a fair settlement of your claims.


Related Reading:
Maximum Medical Improvement and Your New Mexico Personal Injury Settlement
Fair Settlement of Personal Injury Claims is More Math than Wrath!
Medicaid Liens: What is the Obligation in a Personal Injury Settlement?

Collins & Collins, P.C.
Albuquerque Attorneys

Maximum Medical Improvement, commonly referred to as MMI, is a term frequently used in personal injury cases. Maximum Medical Improvement refers to the point in your medical treatment when your doctor determines that further medical treatment will not improve your condition.

MMI is therefore, an indicator of the permanency of your injuries. While there may be slight improvements in your condition, it is not expected that further treatment will result in any significant improvements.

Reaching MMI, however, does not necessarily mean that your medical care is complete. Many people require ongoing treatment and medical expenses related thereto, including physical therapy, pain management, or the need for assistive devices in order to maintain their current health and ability to function.

Reaching MMI also does not mean that your condition will not get worse. Many injuries can lead to secondary injuries or conditions. For instance, in many cases the development of arthritis in an injured body part is common. When this happens you may experience a worsening in pain or a loss in ability to perform certain physical activities. Once you have reached MMI your doctor will be best able to determine whether your condition may worsen and the need for future medical care.

Let‘s look at an example. Say you are injured in a car accident and suffer an injury to a disc in your back. This type of injury is painful and in many cases can cause numbness in your legs. After having surgery to repair the disc, the numbness in your legs improves but you continue to suffer from pain. After undergoing physical therapy and follow up care with your doctor your pain persists. At this point, perhaps six months or a year after your injury, your doctor may conclude that additional surgery would not provide any further benefit and your condition is not likely to improve.

In this situation, your doctor may conclude that you have reached maximum medical improvement. While your condition is not expected to improve your medical care is not complete. You will require continued pain management, which may include pain medication and a regime of exercise. But at this point your doctor is in a position to better evaluate your condition, how it will impact your life, and the need for future medical care.

Keep in mind that in most cases the insurance company will also have you examined by a doctor they hire to evaluate your injuries and testify as an expert witness. These doctors will generally testify that you reached MMI shortly after your accident and that medical bills related to the accident should be cut off at that point.

For this reason when you reach MMI there are several things that your doctor should evaluate and include in his/her medical report. A complete medical report including all of the following will ensure that you receive the full compensation for your injuries.

  • Impairment rating, this is a rating reflecting the percentage of disability for injury. There may be full or partial as well as temporary or permanent impairment ratings. In addition, there may be a rating for individual body parts or organs.
  • Work restrictions, specifically setting forth what you can and cannot do and whether you can continue in your present occupation or must seek new a new occupation. (Note that if your injuries require you to change occupations you may also need to have a separate evaluation to determine whether additional education or training is necessary for you to return to the work force.)
  • Future medical care, including the types of treatment you are expected to need and the cost of such care.

Keep in mind that reaching maximum medical improvement can take time depending on the severity of your injuries. Injuries to several parts of your body will heal at different rates and you will reach MMI for your various injuries at different times. It is important to be sure that you have recovered from all your injuries before being declared to have reached maximum medical improvement.

In short, reaching MMI allows your doctor to predict your future damages, including future medical expenses, lost wages, and pain and suffering. Until you have reached MMI and your damages have been properly evaluated it is nearly impossible to reach a fair settlement or jury verdict for your claim. An experienced personal injury attorney will be able to discuss these issues with you as your case progresses.


Related Reading:
The Limits of Insurance Coverage in a New Mexico Auto Accident
Optional Auto Insurance Coverage Often the Most Beneficial to Your Family
The Importance of MedPay Insurance Coverage in Car Accidents

Collins & Collins, P.C.
Albuquerque Attorneys

The twentieth century saw a 99% reduction in the risk of death associated with pregnancy, One technology that played a major role in this reduction is the appropriate use of the cesarean section when the unborn baby shows signs of fetal distress.

The medical team taking care of the mother and baby are responsible for monitoring the progress of the labor and delivery for signs of fetal distress, and when appropriate, performing a cesarean section.

Many things can happen during birth that cause fetal distress and the need for a cesarean section. A few include: an infant that is too large to pass through the birth canal; labor not progressing because the cervix has stopped dilating; and/or the infant is in a breech position, with its feet coming out first instead of the head.

Monitoring of the fetal heart rate is one of the important ways that the medical team monitors the baby during labor and delivery. Changes in the fetal heart rate are an indicator of fetal distress and that the infant is not getting sufficient oxygen. This is referred to fetal hypoxia. When this situation arises, a decision to perform a cesarean section may be critical to the health of the infant. An infant suffering from hypoxia during delivery can develop cerebral palsy.

Cerebral palsy is a crippling condition that affects the brain and central nervous system. The symptoms of cerebral palsy can be mild in some cases. In severe cases, cerebral palsy can cause uncontrollable reflex movements, intellectual disabilities, seizures, vision and hearing problems and other very serious physical injuries and permanent disabilities.

Cerebral palsy is one of the most common causes of permanent disability in children. However, not all children with cerebral palsy will suffer from the same problems. Some will have more severe problems while others may only experience mild difficulties.

The National Institute of Health recently published a statement concluding that the appropriate use of cesarean section when there are signs of fetal distress has reduced the number of cases of cerebral palsy even though the overall rate of cerebral palsy has not decreased. The NIH explains this anomaly by pointing out that cesarean sections have also increased the overall survival rate of newborns.

The healthcare providers caring for the mother and infant during the labor and delivery process owe the mother and the baby a legal duty of care. If the healthcare providers do not respond to an emergency situation, such a fetal distress/fetal hypoxia, in accordance with the accepted standard of care, the healthcare provider has violated this duty of care.

When this happens and the mother or infant are injured the healthcare providers may be liable for medical malpractice and responsible for the past and future medical costs along with other recoverable damages associated which in the case of severe cerebral palsy can be extraordinary.

If you believe your child has suffered birth injuries as a result of the failure to provide a timely C-section, an experienced personal injury lawyer can review the circumstances of your case with you and ensure that your legal rights and the rights of your child are protected.


Related Reading:
Placental Cerebral Infarction – A Serious and Sometimes Avoidable Birth Injury
Negligent Failure to Perform C-sections Resulting in Cerebral Palsy
Risks of Pre-Term C-Section Should be Understood by the Patient

Collins & Collins, P.C.
Albuquerque Attorneys