Question: Is New Mexico Corrections Department (NMCD) fit to handle COVID-19 (Coronavirus) in its facilities?

Answer: As with any question dealing with the competence of NMCD or its contractors, this was purely hypothetical. Of course, they are not. NMCD cannot handle basic medical care under the best of circumstances.

As COVID-19/Coronavirus pandemic spreads throughout the globe and the United States, New Mexico Corrections Department in its wisdom decided to take no precautions until the first cases were reported in New Mexico. As every reasonably competent medical professional has known for months, once Coronavirus has been detected within the population, it is far too late to take appropriate precautionary measures. At that point, the only goal is to slow the spread and minimize the number of deaths. Unfortunately, NMCD and its medical provider are not fit to accomplish either of these seemingly modest goals.

A quote from The Who, ‘Won’t Get Fooled Again” seems particularly apropos here:

Yeah
Meet the new boss
Same as the old boss…
Won’t Get Fooled Again

New Mexico Repeatedly Fooled by NMCD and its Medical Contractors

We have written much on the incompetence and cruelty of NMCD and its medical contractors. Not only have we written about it, our firm Collins & Collins, P.C. has filed numerous lawsuits related to the subject.

Interestingly, one of the primary topics of our articles, our lawsuits and our concern for the safety of not just our inmate clients but all inmates in the care of NMCD has been osteomyelitis and sepsis which I have characterized as an epidemic in the past. The rate of osteomyelitis and sepsis within NMCD facilities is exponentially higher than in the general population. This is the case despite the fact that NMCD medical contractors are paid millions of dollars each month for on-premises medical care of inmates.

Osteomyelitis is a bone infection resulting from untreated infections that can and have developed from simple scratches and pimples. Our lawsuits thus far have centered around spinal osteomyelitis and sepsis. It is easily preventable with basic medical care. In short, NMCD and its medical provider(s) allow easily preventable, very serious, sometimes fatal epidemics to thrive even when there is not a crisis. There is little reason to believe they can handle the Coronavirus crisis.

Yet, NMCD continues to not only look the other way at the grossly negligent and inhumane medical care that prisoners receive in its facilities, it is our contention in our many lawsuits that they actively conspire with the medical providers in the delivery of said grossly negligent and inhumane medical care.

This gets to the question posed above of whether NMCD is fit to slow the spread of COVID-19 and minimize the death toll to prisoners.

NMCD– Too Little Too Late

As stated above, NMCD and its current medical provider took no action until the first cases were detected in New Mexico. As we are all hearing, that is far to late to do any good. So, what has NMCD done so far? Very little it seems even now.

An article in New Mexico In Depth illustrates the minimal precautions taken even as of yesterday. The response has been limited to restrictions on visitors. There has been no testing still of any inmates, guards or other staff. Simply put, NMCD has no idea what’s going on within its walls. It remains blind to what may very well be a ticking bomb both inside its facilities and the communities in which they reside and its staff and visitors reside.

It is NMCD’s habit of burying its head in the sand. However, this time its deliberate ignorance is endangering the lives of prisoners, prison staff, guards and everyone they come into contact with once leaving the facilities.

Where was the NMCD Medical Contractor During This Slow-Moving Disaster

So, where has the medical contractor been in all this? This would seem to be a relevant and critical question for the Governor to be asking given the contract entered in November 2019 that calls for payment to said contractor of $58 to $70 million dollars per year for the term of the contract. It is even more critical for the Governor to start asking questions given the fact that this same medical provider lost its contract with NMCD in the past. One might say that this was very forgiving of NMCD to allow them back in. Others might take the equally legitimate position that it was irresponsible and dangerous to allow them back in.

Can the taxpayers expect even nominal competence from the NMCD medical contractor given the very expensive contract? Apparently not since even a nominally competent medical provider would have seen this coming given the nature of prisons, prisoners infections in prisons and the already existent Osteomyelitis, sepsis and MRSA epidemics in its facilities.

So, then the question becomes was the medical contractor simply incompetent or deliberately indifferent to the risks to NMCD prisoners, staff, visitors, and the communities to which they return? That really is the only question that remains to be answered from a legal perspective. From a moral perspective, or even just the perspective of a taxpayer, the question is why NMCD and the State of New Mexico continue to ignore the consequences of poor medical care in its prisons.

Question: Is the New Mexico Corrections Department (NMCD) of taken appropriate precautions to protect against spread of Coronavirus in the prisons?

Answer: Of course not. That was a purely rhetorical question. NMCD can never be counted on to do the right thing nor can the people of New Mexico expect even a nominal level of competence at NMCD.

Why does it matter? Guards are equally subject to Coronavirus and lack of precautions have put them at risk and their communities at risk when they leave NMCD facilities.

Gross Medical Negligence, Incompetence and Indifference at NMCD

The medical care within NMCD is grossly inadequate in the best of times. Collins & Collins, P.C. has filed numerous lawsuits against NMCD and its medical providers well in advance of Coronavirus. These lawsuits outline gross levels of medical negligence, incompetence and indifference to even critical medical needs of inmates. Many of the cases involve inmates who begged for weeks or months for medical attention as infections spread through their spines. Some left the facilities in comas, a number arrived at emergency rooms with osteomyelitis, sepsis, some did not survive. Yet nothing seems to have changed at NMCD despite the numerous lawsuits filed or the many similar cases who did not or have not contacted Collins & Collins, P.C.

One particularly concerning issue is the failure to provide basic care for chronic illness such as diabetes which incidentally is a significant risk factor for Coronavirus. Collins & Collins, P.C. has filed suit on one of these so far. We will be filing many more. All of these arose well before Coronavirus. There are countless more that we have not heard from. This is a full-blown crisis now with these inmates at grave risk of death due to NMCD’s failure to take any precautions thus far and the window has closed.

No Advance Precautions Taken by NMCD for Coronavirus Containment

Attorney Parrish Collins at Collins & Collins, P.C. visited Central New Mexico Correctional Facility one week ago. At that time, he was told by a guard that CNMCF was doing nothing to prevent the spread at the facility. Upon visiting the Long-Term Care Unit, NMCD’s sorry attempt at a hospital facility, this was confirmed. To date, it appears that no meaningful action has been taken to stop the spread of Coronavirus in the prisons or the communities in which they reside.

Prison Staff and Guards at High Risk as Are Their Families and Communities

Collins & Collins, P.C. learned 3 days ago, Friday March 13, 2020 that neither staff nor guards were undergoing any testing at all prior to entering or leaving the facility. This puts inmates at risk. It puts the guards, their families and their communities at risk. Given the utter indifference to the seriousness of Coronavirus, it may be expected that Coronavirus will rip through NMCD facilities. Aside from the inhumanity of simply ignoring the grave risk to life of inmates, the spread will radiate into the communities.

New Mexico People Cannot Trust NMCD to do the Right Thing

This may be taken as a general rule of thumb. NMCD rarely if ever behave responsibly and humanely. The medical care, including preventive medicine such as containment of a virus, is grossly inadequate, incompetent and inhumane. In most situations, this does not affect the community. This situation is far different. Governor Lujan Grisham must intervene to protect the inmates, the prison staff and the community at large. NMCD cannot be trusted to act responsibly. Even were they so inclined, which they are not, they are incompetent, and the people of New Mexico should not be forced to rely on NMCD to contain the virus inside its walls nor beyond the gates as prison staff and guards move freely between the prisons and their communities.

Collins & Collins, P.C. has placed NMCD and the Governor’s office on notice of the NMCD’s astonishing failure to take any action to minimize the spread of Coronavirus. You should do the same particularly if you or a loved one works in NMCD or live in a community where there is a NMCD facility.

FAQ: Can you sue for false reporting of child abuse?

Answer: Yes you can sue for bad faith or malicious reports of child abuse but it will not be easy and there are critical deadlines that must not be missed.

Qualified Immunity for Reporting of Child Abuse

Bringing a lawsuit for deliberately false reporting of child abuse is not easy. The person that makes the report is presumed to be acting in good faith. A finding of good faith will defeat a lawsuit for bad faith or malicious reporting of child abuse. Immunity is not available for persons making bad faith or malicious allegations of child abuse.

Possible Claims for False Reports of Child Abuse

There are a number of possible legal claims for such deliberately false reports of child abuse. Although there are several possible claims that might be made, not all of them have the same chance of recovering for the harm they caused. The issue as in almost all personal injury type cases, including something like this, is the availability of insurance. The way the claims are framed can determine the availability of insurance. The two that we will focus on here are defamation and intentional infliction of emotional distress. For one there is insurance and for the other there is a good chance there is not.

Defamation of Character

The best way to approach a lawsuit for bad faith or malicious reporting of child abuse is through a defamation lawsuit. Many people know the term slander but not defamation. Slander falls under defamation under New Mexico law. As such slanderous false allegations of child abuse would be brought as defamation, not slander, in a lawsuit.

However you slice it, New Mexico most definitely recognizes civil claims/lawsuits for defamation. There are a number of criteria for filing a defamation claim which will be addressed below, the most obvious of which is that the report was made in bad faith or with malice.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress (IIED) is also a possible claim for deliberately false reporting of child abuse. IIED can carry extraorindary mental anguish and can result in big jury verdicts if it the case goes to trial. However, the “intentional” part of the equation here can cause problems for recovery for the harm done. In short, there are cases that have found that there is no insurance for intentional acts which would include “intentional infliction of emotional distress”.

Defamation is Covered by Homeowners Insurance

Interestingly and somewhat surprisingly, homeowners insurance policies have been found time and time again to cover cases of defamation even though the actions are arguably, and insurance companies do argue, intentional. This means that if the person or persons making the bad faith/malicious allegations has homeowners insurance, then assuming that you can prove the necessary elements of defamation set forth below, there will be insurance coverage. Thus the best and safest claim to bring for false allegations against you for child abuse is defamation.

Basic Requirements of Defamation for False Reporting of Child Abuse

There are numerous requirements for a defamation claim. It boils down to:

Because there is a presumption of good faith, the hurdle is even higher for reporting of child abuse. At a minimum, this requires that there be no finding by a court, criminal or civil, that the accused person did commit child abuse. Because there is a good faith presumption that the person making the allegations thought there was child abuse, a court finding of any kind would support the presumption and make pursuing a defamation claim extremely difficult if possible at all.

  1. the statements must be false,
  2. the person making statements knew they were false, and
  3. the reputation of the person against whom the false allegations were made has been harmed.

In the case of bad faith or malicious reporting of child abuse, the difficult part is proving the defendant (the person making the false allegations of child abuse) knew the allegations to be false. This is not necessarily an easy hurdle to get over.

Contact Collins & Collins, P.C. for a Free Review of Your Case

If you have been falsely accused of child abuse and

  1. there has been no finding of abuse by a court,
  2. you have evidence that the allegations were made in bad faith or with malice, and
  3. the defendant has homeowners insurance,

you should contact an experienced attorney right away. There is a 3 year statute of limitations on personal injury claims including defamation against private parties such as an ex spouse. The statute of limitations is only 2 years on claims against governmental agencies like Children Youth and Families or their staff. In addition, there is a 90 day Tort Claims Notice requirement that if missed will bar your claims against CYFD. It is important not to delay.

Collins & Collins, P.C. can be contacted at 505.242.5958 or using the online form. We will be happy to review your case to help determine if you do have legal claims against the person or persons making deliberately false reports of child abuse against you.

FAQ: What is driver’s duty to pedestrians?

A driver in New Mexico has a duty to keep a proper lookout for dangers and hazards. This means a driver must pay attention to the road, other vehicles, dangerous road conditions and specifically pedestrians . The basic standard is a standard of ordinary care which in the case of pedestrians is higher than the typical standard of care.

Ordinary Care is Required

The driver must keep a proper lookout so that he or she can maintain control of the vehicle to avoid hazards of which he or she should be aware. The driver is not required to detect all dangers and hazards. There is no requirement that the driver notice every possible hazard but must note hazards that are in plain site or otherwise should be apparent under the circumstances.

This will be a question of fact dependent upon the circumstances of each individual accident.

Duty to Lookout for Pedestrians

Many of the cases addressing proper driver lookout deal with auto/pedestrian accidents. There is more than a mere duty to look around. The driver must be vigilant. In other words, if there is pedestrian present, the driver has a duty to detect the pedestrian and avoid hitting him or her.

When a automobile hits a pedestrian, it will almost always be the fault of the driver. However, it might not be entirely the fault of the driver.

Comparative Negligence

In some cases, the pedestrian may share the fault under New Mexico’s doctrine of comparative negligence. For instance if the pedestrian runs into traffic, then the pedestrian is going to share much of the fault. Comparative negligence is judged on a scale from 1-100%. It could be 0% or 100% the fault of either the driver or the pedestrian and everything in between.

Again, it will be specific to the accident and the conduct of the pedestrian and the driver.

Damages Under Comparative Negligence

The insurance company for the driver will inevitably claim that the pedestrian was at fault. This is as they say just how they roll. The challenge to the attorneys for the pedestrian is to show that the driver alone was responsible. However, this is not always possible as in the example above where a pedestrian runs into the road giving the driver no time to respond or avoid hitting the pedestrian.

In these cases, one might think it is a simple issue of math, multiply the total damages (i.e. injuries and costs to the pedestrian) times the percent of the drivers fault and this gives the amount of damages for which the driver is responsible.

Settlement of Auto/Pedestrian Accident Claims

It is in theory a simple question of math. It is definitely a question of math once it the jury has decided on the total damages and the comparative fault between the driver and pedestrian. But most cases do not get to the jury. Instead they are settled prior to a jury trial. On the other hand, some do go to trial and it is important that the pedestrian’s attorney prepare as if the case will go to trial.

This means that the attorneys for the pedestrian must investigate and understand the facts. Just as importantly, the attorney must present those facts to the insurance adjuster in a persuasive manner. There will always be a lot of resistance on the part of the adjuster to fully value the claim and its driver’s responsibility for the accident.

The settlement negotiations can take a long time. Frequently, it becomes clear that the adjuster has no intention of dealing fairly with the pedestrian. In those cases, a lawsuit must be filed. This does not end settlement negotiations. Rather, it is now an attorney for the insurance company rather than the adjuster that is doing the negotiating. This can be good or bad depending on the attorney. Either way, these cases will generally settle before the case goes to trial. It is just a lot of work to get there.

Contact an Attorney Experienced in Auto/Pedestrian Accidents

It is important that you seek experience legal representation. It is also important that you get an attorney that will put in the work necessary to obtain a fair settlement of your claims. Collins & Collins, P.C. may be contacted online or by phone at 505.242.5958. There are no costs or fees to you unless we are able to obtain a settlement or verdict in your favor.

Negligence in an auto accident may be based on the violation of ordinary care. Ordinary care has a bit of a circular definition which the care that an ordinary driver would use in similar circumstances and conditions. Ordinary care is always an issue in negligence cases whether auto related or other types of cases as this is the standard of care that must be met to avoid a finding of negligence and consequent liability for any harm caused as a result of the negligence. However, this article is about negligence per se.

Negligence Per Se

Negligence per se in auto accident cases in New Mexico arises when a negligent driver has violated a law, statute or regulation whose purpose is the protection of those using the roads and highways of New Mexico. There are many such laws, statutes and regulations related to the operation of a motor vehicle. The violation of these will often overlap with plain negligence or breach of ordinary care. After all, it could be argued that the ordinary driver would not violate a statute or regulation related to driving. This is clearly not the case as many if not most drivers routinely violate traffic and other driving laws such a speeding, failure to yield, driver inattention and so on. Be that as it may, the fact that everyone does it does not mean it does not arise to negligence per se.

The bottom line is that if the driver violates a statute or regulation and causes an accident, it is negligence per se and that driver is in the absence of comparative negligence fully responsible and liable for any harm that ensues to others as a result of the accident.

Driving Laws, Regulations and Statutes are Numerous and Varied

There are many regulations and statutes that deal with the operation of motor vehicles that include not just cars but trucks, buses, delivery vehicle and any other type of motor vehicle traveling on the nation’s roads and highways. The regulations and statutes will cover all of modes of vehicular transportation. For instance, the traffic laws apply to all types of motor vehicles. Other laws and regulations will be specific to the type of vehicle. For instance, trucks have very strict regulations and statutes governing both trucks and drivers beyond basic traffic laws.

Important to Know Laws and Regulations Governing Vehicle that Caused the Accident

A negligence per se finding is very valuable in a motor vehicle accident. What it means is that the violation of the statute or regulation alone is sufficient for a finding of negligence. Nothing further is required although significantly more is typically present.

As such, it is important in an auto accident case to understand the laws, statutes and regulations governing the vehicle and the driver that caused the accident. When viewing the facts of an auto accident with the applicable laws, statutes and regulations in mind, negligence per se will often stand out clearly. This makes resolving your auto accident claims must easier and typically with much less resistance on the part of the insurance company.

Of course, this is not always the case as there are many insurance companies that do conduct themselves with fairness and good faith in the settlement of claims. For those situations, the negligence per se finding is perhaps even more important since the jury will eventually learn of negligence per se through the trial and ultimately the jury instructions.

Contact an Experienced Auto Accident Attorney

Some auto accidents are more complex and difficult than others. Some can move fairly smoothly and quickly through the claims and settlement process. It is important to have an attorney that know the difference and can move your case in the most efficient manner possible. However, it is equally important that the attorney be prepared for the worst, meaning the insurance company will choose not to behave in a responsible manner. This means having an attorney that always has an eye toward a jury trial in the event that one becomes necessary.

Collins & Collins, P.C. has been assisting victims of auto accidents of all varieties across New Mexico since 2001. We can be reached online or by phone at 505.242.5958.

Immigrants suffer significantly higher rates of on the job injuries and death.  There are a number of reasons for this which will discussed below.  Unfortunately, many immigrants do not know their legal rights when a work injury or death occurs. 

Immigrants Work in Dangerous Industries

Immigrants, especially undocumented immigrants, tend to gravitate toward dangerous jobs.  This is because the jobs are hard to fill and these immigrants are the only workers willing to take the positions.  Immigrant workers are heavily represented in construction, manufacturing, restaurants and day labor, all of which have higher than average accident rates. 

Little Safety Training and Equipment Provided to Immigrants

Immigrants often receive little if any safety training.  Far too often the training is conducted in English only so that the immigrants understand very little of what training is provided.   Worse still, employers of immigrants often refuse or otherwise fail to provide immigrants with proper safety equipment and apparel.  The lack of safety equipment and apparel can turn an otherwise innocuous accident into a very serious accident. 

The lack of effective training, equipment and apparel coupled with the dangerousness of the jobs worked by immigrants result if a disproportionate number of injuries and deaths to immigrant workers. 

Immigrant Workers’ Lack of Knowledge of Legal Rights

On top of all of the above, immigrant workers typically lack knowledge of their rights in the case of a work injury or death.  This is in part due to limited English skills.  However, much of it is by design.  Employers of immigrants, especially undocumented workers, are too often not inclined to inform immigrant workers of their rights following an accident.  There are some employers that prey on immigrants, again especially undocumented workers.  As a consequence, many immigrant workers do not think they have any rights at all.  This is not true.

Immigrant Worker Rights Following Work Accidents

Immigrant workers have all the same rights as any other worker.  They have the right to workers compensation.  They also have the same rights as others under law of torts (i.e. accident, injury and wrongful death laws).  Most immigrant workers would be very surprised to hear this. 

Immigrant Workers’ Fear of Pursuing Legal Rights for Work Injuries or Death

Immigrant fears of pursuing legal rights has always been a problem. This is true both in civil matters as well as criminal matters.  It is common knowledge that many immigrants will not report crimes against them due to the fear of deportation or other immigration consequences.  This is also true of the pursuit of legal rights in cases of personal injury and wrongful death, including those suffered at work. 

It’s easy as a lawyer to say that your immigration rights should not be affected by your immigration status.  Legally that is true.  In practice however, particularly in today’s political climate, there are far too many law enforcement officials of all stripes that could care less about the law protecting immigrants.  This is also true of employers, and even some insurance adjusters. 

In the case of law enforcement indifference to legal rights, there is very little consolation that I can provide right now. These are long legal battles lasting years which matters little to the affected immigrant.   To a certain degree, the same can be said of employers and insurance adjusters.  On the other hand, consequences to an employer or insurance adjuster playing the undocumented immigrant card against an injured worker can be quite severe for both the employer and the insurance adjuster.  This is particularly so for insurance companies who can face very serious and costly bad faith claims for such behavior.

Balancing of Immigration Status with Legal Rights Following a Work Accident

It is no doubt an extremely difficult decision for an immigrant to decide to pursue legal action in today’s climate.  In cases of minor injuries, it is perfectly understandable that an immigrant would choose not to pursue his or her rights.  In cases involving catastrophic injury or death, the decision to move forward may be easier particularly when there is no other option due to the magnitude of injuries and damages suffered by the immigrant and the immigrant’s family. 

These are hard decisions and should not be made alone.  They should not be made without the advice of an experienced attorney.  If you or a loved one has suffered a grave injury or death while at work, give Collins & Collins, P.C. a call at 505.242.5958.  The consultation is free and you will not pay any fees or costs unless we win your case. 

There are many questions that workers may have regarding legal claims for work injuries. We have addressed a few on our FAQ Work Injuries page.

Ride-hailing has taken the U.S. by storm. As of the fall of 2018, 36% of U.S. adults used ride-hailing services such as Uber and Lyft or their innumerable offshoots. That is a lot of passengers, a lot of trips, and inevitably a lot of accidents. To some degree, a ride-hailing accident can be treated much like a regular auto accident. However, there are a number of issues unique to ride-hailing accidents not present in the typical auto accident.

Who is Liable in a Ride-Hailing Accident?

The short answer is potentially everyone along the chain including the driver, the ride-hailing service, other drivers, other third parties and possibly other passengers. The determination of liability will be case specific depending on the facts of each ride-hailing related accident.

Liability of various parties will as in every auto accident case depend on who was at fault in causing the accident. If the auto accident is the fault of a third party other than the ride-hailing service driver, then there is little need to discuss the ins and outs of claims against ride-hailing services or their drivers.

On the other hand, if it is the fault of the ride-haling service driver, then a number of factors unique to ride-hailing services along with the magnitude of the injuries and damages will dictate the approach in any particular accident. The factors unique to ride-hailing services are simply obstacles that must be overcome. Every auto accident or personal injury case will have obstacles. Ride-hailing services throw up more than are typically encountered.

Obstacles to Recovery in Ride-Hailing Accidents

Like all corporations, ride-hailing companies such as Uber and Lyft do all they can to maximize profit while minimizing responsibility for harm resulting from their services. Ride-hailing services do this through several tactics with varying degrees of success.

Forced Arbitration

Forced arbitration is the primary tool of ride-hailing services and corporations generally to minimize accountability for the harm they cause. Arbitration is a means of settling disputes outside of court. That sounds great until you understand how it works in practice. In practice, forced arbitration will force an injured passenger or the passenger’s survivors in the case of wrongful death to go before a panel of arbitrators hand-picked by the corporation, in these cases Uber or Lyft. Just as bad, if not worse, the jurisdiction for the arbitration is typically in the state the corporation feels it has the best chance of killing claims without little chance of success for the passenger or survivors.

Having heard this, most would agree this is outrageous. However, the hand-picked corporatist judges on the U.S. Supreme Court see nothing wrong with these schemes. In fact, the rulings from the Supreme Court have essentially gutted the protections that the New Mexico Supreme Court had put in place. In short, these are binding on anyone that agreed to their terms. Agreement to the terms is required to use the ride-hailing applications. In short, if you use the Uber or Lyft apps, then you it is fairly certain that you are bound by forced arbitration.

It should be noted that the forced arbitration provision kicks in only while the app is in use. Therefore, passengers, pedestrians and other drivers are not bound by the arbitration clauses and are free to sue the ride-hailing service under appropriate tort laws for personal injury or wrongful death.

Drivers as Independent Contractors

This is a common ploy of companies of all shapes and sizes to minimize liability for the actions of their contractors or agents that cause harm. It doesn’t work for the most part. A company, including ride-hailing services, is responsible for the actions of its employees, contractors and other agents while those agents (i.e. contractors) are engaged in activities that benefit the company (i.e. driving passengers around) under the direction of the company.

The last part, “under the direction of the company” can be a little tricky as Uber and Lyft will try to argue they were not directing the drivers, the drivers could do as they wanted. In other words, the driver is free to drive or not drive. However, this argument will likely not carry much weight in New Mexico since once the driver does decide to drive, the driver is under the absolute direction of the ride-hailing service through its app including which passengers to pick up, which routes to take and so on.

The bottom line here, at least in New Mexico, is that probably makes little difference for an injured passenger or other party whether the driver was an independent contractor or an employee.

Minimal Liability Insurance Policy Limits

Minimal liability policy limits is a problem throughout New Mexico. The minimal limits for liability in New Mexico are only $25,000.00. This amount will not come close to covering even medical costs in a serious accident. That said, at least the ride-hailing services require by law that their drivers maintain liability insurance. In New Mexico in particular with the highest rate of uninsured motorists in the nation, $25,000.00 is almost a luxury.

The best protection against minimal policy limits or uninsured drivers is underinsured motorists coverage on your own auto insurance. Underinsured coverage is the best deal in insurance so much so that insurers have at time been severely reprimanded by the courts for discouraging consumers from obtaining the underinsured coverage. But that is a story for another time and has been discussed here at length.

Contact an Auto Accident Attorney With Insurance Experience

The challenge in most every auto accident, personal injury, medical malpractice and/or wrongful death claim is to locate all of the available insurance. The arbitration provisions discussed above may bar a ride-hailing app user from recovering against the insurance of the ride-hailing service, but there is almost always insurance somewhere that can be found. To do this, you need an auto accident attorney with significant knowledge of insurance issues that is able to identify every available insurance policy to cover the injuries. Contact Collins & Collins, P.C. at 505.242.5958.

Malingering is basically faking an illness in order to achieve some non-medical goal. Reading inmate files and medical records, it is apparent that inmates are routinely presumed to be malingering even when there are clear signs of serious illness. There are legitimate concerns about prison security related to malingering such as the security risks of transporting malingering inmates for outside medical care. However, in most cases the presumption of malingering is purely pretextual and has nothing at all to do with prison security. The presumption of malingering by prison officials typically in coordination with the prison medical provider often leads to horrific harm to inmates. A lot of folks/taxpayers might say “So what?”. To that I would respond, “you’re paying for it and it is very expensive”.

Numerous Cases of Osteomyelitis Illustrate the Presumption of Malingering

Collins & Collins, P.C. has numerous medical malpractice claims in litigation against New Mexico Corrections Department (NMCD) and its former medical provider for the gross, reckless, inhumane medical neglect of NMCD inmates who have suffered spinal osteomyelitis often accompanied by sepsis.

Osteomyelitis is slow developing infection. It is easily preventable with basic antibiotic treatment. Due to the extraordinarily high rate of MRSA in prison environments, a simple scratch, pimple or other skin abrasion can become infected. Many inmates are immune compromised due to drug use, hepatitis C, diabetes and other chronic illness. This makes them highly susceptible to the progression of minor infections to major infections if not treated properly.

Osteomyelitis is a slow process. Along the way, the inmate will show numerous signs of worsening infection such as fever, fatigue, irritability, nausea, redness, swelling, severe pain and lost range of motion. As osteomyelitis begins to develop and progress, the signs are not subtle though the disease continues to progress slowly. In the cases filed by Collins & Collins, P.C., the inmates go through all of these symptoms and signs with inmates repeatedly requesting medical attention which is routinely denied. Generously, one might attribute the refusal to provide critical, sometimes life saving care to the presumption of malingering. I say this is a generous assumption because it is just as likely that the care was and is denied out of simple cruelty. In the alternative, the motive may be strictly the maximization of profits to the medical provider.

Whatever motivates the denial of medical care, the result is the same, infections go untreated even once the inmates is in agonizing pain and unable to walk. This can go on for weeks or months with the inmate finally being transferred to outside medical facilities, often to the New Mexico taxpayer funded University of New Mexico Hospital. They will remain at in the hospitals for weeks or months before transfer to rehab facilities. Assuming the inmates survive, they will eventually be transferred back to NMCD. And even then, the inmates may not be provided with the minimal specialist ordered follow up care resulting in recurrence of osteomyelitis. Without belaboring the point, this is not just cruel and inhumane, it is extremely expensive to taxpayers.

NMCD Not Alone in Presumption of Malingering

A recent case in the Santa Fe County jail shows that NMCD and its medical providers are not alone in their cruelty, inhumane treatment and the reckless disregard of inmate health. In that case, a female inmate was suffering from meningitis. Her repeated pleas for medical help were not just ignored but met with laughter and mockery from the guards. The guards told her to just shoot up some heroin that she was just going through withdrawal, a textbook case of false assumptions of malingering and/or cruelty.

According to other inmates, she begged for help filing repeated requests for medical attention. The other inmates pleaded with guards on her behalf as the woman begged them also to get her help saying that the guards were just going to let her die which they in fact did do.

As a result of the refusal to provide medical care, the meningitis led to infection and sepsis in her spinal cord and brain stem. By the time she was sent to the local hospital, she was paralyzed from the neck down and unable to breathe on her own yet in its wisdom the Santa Fe County jail saw fit to shackle her feet.

Unfortunately, this is a scenario Collins & Collins, P.C. has seen before. Just like our cases at Collins & Collins, P.C. the ultimate result was the death of the inmate and like our own cases, an inevitable lawsuit against the jail. And yes, you guessed it, all of this will be paid by Santa Fe and New Mexico taxpayers including the hospitalization and the lawsuit to come.

Training Essential for Prison Guards

There is no excuse for the negligence of the medical providers in these cases. The fact is they are either grossly incompetent or simply sadistic and cruel. Perhaps it is a little of both.

On the other hand, the guards are not medically trained. They should not be making decisions of whether an inmate gets medical care. They should be trained to immediately respond to sick calls by referrals to medical. This will accomplish a couple of things. First, the inmate will presumably get appropriate medical care (the fact is they probably will not in a prison or jail setting due to medical incompetence and disinterest). Second, and perhaps most compelling for the State of New Mexico and/or the counties at issue and their respective taxpayers, this will avoid the enormous medical costs of fixing what could have been easily prevented. Finally, the taxpayers will avoid the costs of expensive litigation, attorneys fees and judgments or settlements stemming from the refusal to appropriately respond to serious inmate illnesses.

Normas, Políticas y Procedimientos para la Prevención del Suicidio en Prisión

Las políticas del Departamento de Correcciones de Nuevo México (NMCD) para la prevención del suicidio presumiblemente siguen las políticas y normas estandarizadas establecidas por la Asociación Americana de Correcciones (ACA) y la Comisión Nacional de Atención de Salud Correccional (NCCHC). De una revisión de NMCD ACA y acreditación de la NCCHC no está claro en absoluto que este sea el caso.

Acreditación de la ACA y NCCHC Muy importante hasta junio de 2016

Un paseo casual a través de las políticas de salud de los reclusos de NMCD muestra innumerables referencias a la ACA y a la NCCHC (las referencias de la NCCHC han sido eliminadas o están en proceso de eliminación, lo cual se discutirá a continuación). Sin embargo, el Contrato de Servicios Generales (el Contrato) celebrado en junio del 2016 entre NMCD y su actual proveedor de atención médica, la importancia de la ACA y la NCCHC se enfatizó repetidamente. Eso no ha cambiado.

De hecho, el cumplimiento con la ACA y la NCCHC se establece en los párrafos iniciales como parte de los “objetivos y requisitos” del contrato:

“El objetivo y el requisito de este Acuerdo es proporcionar servicios integrales de atención médica, dentro de un entorno seguro, dentro de los fondos disponibles, y de acuerdo con los estándares de la Comisión Nacional de Atención Correccional de Salud (NCCHC), la Asociación Correccional Americana (ACA) , los estándares actuales de atención comunitaria y los procedimientos de NMCD contenidos en este documento “.

Falta de Acreditación de la ACA y de la NCCHC Estrechamente Relacionada con Negligencia Médica y de Salud Mental

Como señalamos en un artículo anterior, al menos una prisión, el Centro Correccional de Nuevo México Central (CNMCF) no fue acreditado por la ACA a partir de 2015 y no obtuvo la acreditación hasta principios de 2019. Por lo tanto, durante casi cuatro años, este centro careció de acreditación de la ACA. No es una coincidencia que esta sea la misma instalación en la que ocurrieron dos suicidios recientes el mismo día con pocas horas de diferencia.

En cuanto a la acreditación de la NCCHC, Collins & Collins, P.C. ha presentado docenas de solicitudes de registros en virtud del Acta de Inspección de Registros Públicos de Nuevo México (IPRA) y, a partir del 1° de marzo de 2019, ni una sola institución correccional de NMCD ha sido acreditada por la Comisión Nacional de Atención de Salud Correccional (NCCHC) desde la fecha del nuevo contrato en junio de 2016.

De hecho, a través de las solicitudes de IPRA, se determinó que NMCD decidió en algún punto después de junio de 2016 dejar de buscar la acreditación de la NCCHC. Esto es notable en muchos aspectos, entre los cuales se encuentran las disposiciones reiteradas del Contrato que exigen la acreditación de la NCCHC.

La falta de respeto o preocupación por los estándares relativamente moderados de atención médica y de salud mental para los reclusos establecidos por la ACA y la NCCHC está ciertamente relacionada con la negligencia médica generalizada y el descuido de la atención de la salud mental en las instalaciones de NMCD.

Suicidios Recientes en las Instalaciones de NMCD

El 2 de diciembre del 2018, dos reclusos se suicidaron en la misma instalación correccional— el mismo día. En un artículo anterior, comenzamos a ver lo que sucedió en esos dos casos. Collins y Collins, P.C. representa a las familias en ambos casos y durante las etapas iniciales de nuestra investigación y representación ha habido múltiples señales de alerta. El primer tema de preocupación fue la notificación de los puntos de contacto designados en ambas muertes. En segundo lugar, el hecho de que la Instalación Correccional del Centro de Nuevo México careciera de acreditación tanto de la Asociación Correccional Americana (ACA) como de la Comisión Nacional de Atención Sanitaria Correccional (NCCHC) planteó preocupaciones adicionales. Una tercera área que causó alarma giró en torno al tema de la provisión de personal o, más bien, la falta de personal.

Profunda Escasez de Personal de la Salud Mental en Prisiones de Nuevo México

Según un informe del Comité Legislativo de Finanzas de Nuevo México publicado el 23 de octubre del 2018 y titulado “Evaluación de programas: Departamento de correcciones – Estado de los Programas para Reducir la Reincidencia y la Supervisión de los Servicios Médicos“, la tasa de vacantes para los proveedores de Salud Conductual en el CNMCF fue 50%.

El Centro Correccional Central de Nuevo México (CNMCF), donde ocurrieron los dos suicidios, proporciona, o se supone que proporciona, niveles elevados de atención médica a los reclusos con graves necesidades médicas y de salud mental. Aquí surgen dos problemas evidentes. CNMCF no estuvo acreditado por la ACA desde junio de 2016 hasta enero del 2019. El CNMCF, junto con todas las demás instalaciones de NMCD, decidió no buscar la acreditación de la NCCHC desde junio del 2016.

No es coincidencia que el informe de finanzas legislativas mencionado previamente indique una tasa de vacantes del 100% para los proveedores de salud mental y conductual en el CNMCF a la fecha del informe. El problema de la escasez de personal va al corazón de la indiferencia de NMCD a las necesidades de salud mental de los reclusos del estado. Esto se refleja en la escasez de personal en todo el sistema de NMCD como se indica en el Informe Legislativo:

“La Oficina del Director Médico del Departamento de Correccionales, empleados estatales que son responsables de supervisar la atención, las oportunidades y la educación necesarias para que los pacientes mejoren su salud … tenían una tasa de vacantes del 25% a partir de octubre del 2018. Dos vacantes eran para auditores de enfermería que supervisaran la prestación de servicios médicos. La Oficina de Salud Mental, responsable de proporcionar servicios a los reclusos en las cárceles estatales, tenía una tasa de vacantes total del 40%, de los cuales la mayoría eran terapeutas de salud mental y conductual “.

Los Costos de la Negligencia de la Salud Mental de los Reclusos

Los costos de descuidar la salud mental de los reclusos de Nuevo México son muchos. En primer lugar, es inhumano y primitivo encerrar a las personas con enfermedades mentales sin tener en cuenta

sus enfermedades o su tratamiento. Además de la inhumanidad, la profunda escasez de personal médico generalizado es casi por definición negligencia médica. Esto es quizás más pronunciado en el caso de confinamiento solitario (o segregación, como suelen llamarle aquellas personas que trivializan la inhumanidad de esta práctica). Afortunadamente, este problema ha sido abordado en parte por la reciente legislación firmada por el gobernador Lujan Grisham.

En segundo lugar, y relacionado con el primero, se supone que el propósito del castigo penal en Nuevo México es la rehabilitación. En Nuevo México, el encarcelamiento es cualquier cosa menos rehabilitador. El problema es particularmente pronunciado entre los internos con enfermedades mentales. Muchos reclusos están en prisión principalmente debido a sus enfermedades mentales. En lugar de abordar esta realidad, las cárceles de Nuevo México amplifican la enfermedad mental a través del descuido médico grave de los reclusos con enfermedades mentales.

Digamos finalmente, pero hay muchos otros costos que requerirían un tratado para poder abordar, hay costos para los contribuyentes. ¿Cuál es el costo de llevar a una persona con enfermedad mental y empeorar la enfermedad de manera exponencial? ¿Cuál es el costo para el recluso? ¿Cuál es el costo para las familias? ¿Cuál es el costo para las comunidades a las que los reclusos regresan casi invariablemente? ¿Cuáles son los costos para los contribuyentes de Nuevo México para dirigirse a estas personas en salas de emergencia, arrestos, encarcelamientos y tratamientos futuros para reparar el daño que se les hizo mientras estaban en prisión?

Las respuestas a estas preguntas son bastante aparentes y si no se reforman las prisiones, existe el costo de las demandas judiciales, los pagos de cualquiera de los cuales podrían cubrir completamente los costos de la falta de personal. Sin embargo, el ciclo aún continúa.

Original English Version:

Every citizen is entitled to the use of the court system for the protection of his or her rights. This includes and generally necessitates contacts with attorneys. Prisoners have the same First, Fifth and Fourteenth Amendments rights to access to the courts and attorneys. In the case of prisoners with serious medical conditions, access to an attorney can be critical to the health and safety of the prisoner.

Right to Attorney Contact

This is probably the most important remaining right that a prisoner has. Prisoners are stripped of virtually every right and privilege possessed by the general population. Prisoners are locked away, hidden from society and too easily forgotten. Prisoners are easy prey. There are very few that will stand up for them or even give them a second thought. In fact, there are very few attorneys that will stand up for them for a host of reasons primarily due to the obstacles the State and Federal governments place in the way of effective legal representation of prisoners.

However, there are some attorneys that do, and prisoners have the right to contact those attorneys for legal assistance. This specifically means the right to seek out the legal services of an attorney. There are numerous cases from State-level courts to federal appellate courts to the U.S. Supreme Court that view this right as fundamental and beyond dispute.

NMCD Interference with Prisoner Access to Legal Counsel

We at Collins & Collins, P.C. have been hearing with increasing frequency that NMCD (New Mexico Corrections Department) in its vast legal wisdom has begun denying prisoners the right to seek out legal counsel. More specifically, we have heard that NMCD has been specifically denying the right to seek legal counsel from Collins & Collins, P.C. Although we appreciate the compliment from NMCD and take it as a point of pride that they don’t want prisoners talking to us, they are in plain violation of the Constitution.

It’s a rather interesting story how this pattern has emerged. Without boring the reader with the entire history of the obstruction of discovery (collection of evidence) by NMCD and its contractors, the pertinent details are rather short.

Solitary Confinement Reform

After years of falling short, solitary confinement was finally, although only partially, reformed at the New Mexico legislature earlier this year. There are countless reasons to reform solitary which is considered torture in all developed countries other than the U.S. and has been greatly restricted in most states with NMCD still grasping to retain unbridled authority to use solitary confinement as it chooses.

The New Mexico legislature did reign NMCD in slightly but only slightly. And even these modest reforms are apparently being ignored by NMCD. Moreover, it can reasonably be argued that NMCD has as is its custom misled the public and the legislature on its continuing use of solitary confinement.

NMCD issued its first Restrictive Housing Quarterly Report on October 18, 2019. The NMCD report lists the names of all inmates in “restrictive housing”, a euphemism NMCD likes to use for solitary perhaps due in part to their tendency to rename or rebrand solitary confinement so it can continue its use. In any event, the attorneys and staff at Collins & Collins, P.C. went through the Report itself and found a number of inmates known by Collins & Collins, P.C. to be in solitary who are not on the list.

X-Pod

The best example is the aptly named “X-Pod” at the Penitentiary of New Mexico (PNM) in Santa Fe. X-Pod is by any definition solitary confinement. The inmates are held in their cells without contact with anyone for a minimum of 22 hours per day. As often as not, it seems based upon reporting they are regularly held in isolation for more than 22 hours a day with regular periods of extended isolation for days and weeks at a time.

X-Pod may represent the most cynical, callous and inhumane trivialization of solitary confinement by NMCD. NMCD calls X-Poda “general population” pod despite the conditions of confinement, the complete lack of rehabilitation programming and the forfeiture of virtually all basic prisoner rights and privileges.

Denial of Attorney Contact for X-Pod Prisoners

Collins & Collins, P.C. took note of this and began investigating X-Pod. Once we did, we immediately began hearing from inmates and families that NMCD was preventing them from contacting Collins & Collins, P.C. on their medical malpractice claims. This is not new as we have, over the last several months, been hearing from inmates in NMCD facilities around the state that they have not been allowed to contact Collins & Collins, P.C. specifically. The reason given by NMCD for the denials has been according to family and inmate reports that Collins & Collins, P.C. does not represent them.

This is not the standard for prisoners’ access to legal counsel. if this were the standard, no prisoner would ever be able to get legal representation as they would never be allowed to contact an attorney for the purposes of seeking legal representation. This is pure wishful thinking on the part of NMCD. In fact, unless this behavior ceases, Collins & Collins, P.C. will just add it to the pile of lawsuits it has already filed against NMCD.

Importance of Attorney Contact for Inmates in Solitary Confinement

Solitary confinement is considered torture by all developed nations but the U.S. for a reason. Solitary causes severe and permanent psychological harm to its victims. NMCD knows this or they should. Collins & Collins, P.C. alone has two cases pending for two NMCD prisoners that killed themselves while in solitary in the same NMCD facility, Central New Mexico Correctional Facility in Los Lunas (CNMCF) within an hour of one another. For those that survive extended solitary, they will suffer extensive psychological damage for which only intensive psychological counseling and therapy can alleviate.

Access to attorneys for inmates in solitary is critical to their health and in some cases their very survival. Cutting them off from counsel is illegal and morally outrageous. It seems that NMCD prefers to wait until the suicide occurs and the inevitable lawsuit that follows.

Prisoner Access to Legal Counsel Matters to New Mexico Taxpayers

NMCD just requested a budget of $321 million for next year’s operations. That is by any standard a very large sum of money. The budget does include attorneys’ fees and costs for the defense of lawsuits related to NMCD misconduct. To some degree, it also includes the costs of settlements and verdicts resulting from these lawsuits. However, it leaves the greatest costs out of the calculations

Solitary, as discussed, causes severe and permanent psychological harm to prisoners. It can also cause significant physical harm. This harm must be addressed once the prisoner leaves the custody of NMCD. The costs of these harms are then carried by New Mexico taxpayers by way of treatment, homelessness, crime, recidivism and the many other ills resulting from the release of now mentally ill, physically disabled and broken inmates back into the public. These costs have not been calculated and they certainly are not included NMCD’s proposed budget.

NMCD’s Resistance to Reform

We, as do anyone working in the field, marvel at NMCD’s inability to learn from past mistakes. One might attribute this to ignorance. The reality is that there are many vested financial interests that perpetuate the misconduct of NMCD and its contractors. The denial of the right to counsel, along with all the other deprivations of rights and basic dignities of prisoners, is just one way of preserving NMCD’s budget, maximizing profits for its contractors, and making absolutely sure that all NMCD prisoners will be regular returning customers in the future. NMCD is not about rehabilitation. NMCD is about filling beds.

Collins & Collins, P.C. will continue to investigate NMCD, file suits for its seemingly endless misconduct and to do our best to insure that what few rights solitary prisoners have will be preserved so that they do not become another prison suicide case for which NMCD will then disclaim any responsibility.

If your loved one is being denied the right to contact an attorney, contact one yourself to get the ball rolling. If your loved one is being denied the right to contact Collins & Collins, P.C., we would very much like to hear from you. Like Santa, in keeping with the season, we are keeping a list.