In most personal injury matters, it is typically wise to conduct as much informal discovery as possible prior to filing suit. Informal discovery includes the collection of such things as police reports, witness statements, photos of the scene and so on. Formal discovery is what occurs once litigation is commenced (i.e. a lawsuit is filed). In trucking accident cases, informal discovery will have significant limits since the information needed outside the aforementioned informal discovery will be entirely under the possession and control of the defendant trucking company. Trucking companies behave much differently than the typical auto accident defendant. Bottom line is that they do not provide evidence without court action.

File Suit and Ask Questions Later

The advice that a trucking accident victim should file suit and ask questions later runs counter to the typical practice at Collins & Collins, P.C. which is to gather as much evidence as possible to evaluate a case to make sure that it is warranted prior to filing suit. Deviation from this practice in the case of trucking accidents is necessary and proper for a couple of reasons. First, the victim in a trucking accident will have no access to critical evidence. Second, New Mexico is a comparative negligence state. This means that the trucking company may be sued even if the driver and the company were only partially at fault. In trucking cases, the injuries if the victim survives at all, are generally catastrophic and permanent. Consequently, even after apportioning fault between the trucking company/driver, and the victim, compensation for injuries or death will still most likely justify the policy limits on any insurance policy carried by the trucking company.

Preservation Letter and Notice of Spoliation

In dealing with trucking companies, it is safe if not critical to assume that they will hide, destroy or “lose” evidence. To protect the victim, a letter demanding preservation of evidence upon penalty of spoliation should be sent out immediately after the accident. Immediately means immediately, not weeks later. This letter will put the trucking company on notice that they must preserve (save, store, protect…) all evidence and documents related to the accident. Failure to do so will result in spoliation sanctions by the court. Spoliation sanctions are very powerful in cases like this. In New Mexico, where evidence is lost or destroyed, all evidentiary matters related to that evidence will be found in favor of the victim. In other words, if the trucking company loses a document such as engine diagnostic data, it will be presumed that the lost document was very bad for the trucking company. The jury will be told this at trial.

Seek Legal Guidance

There are some cases where it is possible to effectively represent yourself in a case. These are typically limited to very simple, clear and small accidents such as auto accidents and, slip and fall accidents. Trucking accidents are not the type of case even the ablest, smartest, most studious folks would want to take on by themselves.

Trucking companies will not treat you fairly with or without an attorney. This is the case even when the driver would if he or she could. The difference is that an experienced attorney can force them to behave and force them to treat the victim or the surviving loved ones fairly.

Collins & Collins, P.C. may be contacted online or at 505.242.5958.

It is illegal for bartenders or wait staff to over-serve patrons regardless if they are driving or not.  The state of New Mexico has launched a DWI campaign dubbed buzzkill cracking down on over-service of alcohol to prevent DWI accidents.  This is a always a significant issue during the holidays when folks are inclined to over-drink and bars are prone to accommodate.  The consequences are often catastrophic or deadly.

This raises a number of issues for anyone harmed as a result of over-service.

Who Can Sue?

In New Mexico, anybody harmed as a result of over-service of alcohol can sue the bar, restaurant, bartender or wait staff that over-served the person causing the harm. This includes the person that was over-served.  For example, if an over-served customer hits the road and has a deadly accident killing himself, his passenger and others, all would have a wrongful death claims against the establishment and employees that over-served.

Negligence Per Se

Negligence per se basically means that the fact that something happened at all is sufficient to show negligence.  Violation of laws and statutes such as the ones governing over-service of alcohol are negligence per se.

Dram Shop Laws

New Mexico’s dram shop laws govern bar sales including over-service of alcohol.  The dram shop laws are written and interpreted for the protection of the public.  Although it may be little consolation following an accident related to over-service, these laws are very beneficial to those harmed by over-service of alcohol.

Punitive Damages

There a two kinds of damages (money) awarded in personal injury and wrongful death cases.  The first is compensatory damages compensate the victim for injuries, medical costs, lost income, loss of life to name just a few.  Punitive damages are used to punish and deter the wrongful behavior.  Punitive damages are often an issue in these cases and DWI accident cases generally due to the recklessness of either DWI or encouraging DWI.

The primary goal of dram shop and DWI laws is to protect the public.  As such, the deterrence aspect of punitive damages is very important in these cases.  It is particularly so in cases of repeat offenders.  As the article below from the Las Cruces Sun indicates, 75 bars have been cited for over-service of alcohol.  These and others may have been sued.  The point is that for anyone harmed by over-service, it is important to determine if the establishment has prior incidents.  In these cases, the punitive damages could be quite large dwarfing the compensatory damages.

An Experienced Attorney Can Help

As in most lawsuits, the concepts are fairly basic.  The complexity is in the details.  Because DWI accidents typically lead to severe injuries or death, the stakes are high.  This means that the defendants (servers) and their insurance companies will fight over every last nickel.  It is important to have an attorney experienced in DWI accidents, dram shop laws, insurance, litigation and damages to work through each and every hurdle the insurance companies will throw at you.

Collins & Collins, P.C. has been helping innocent victims throughout New Mexico since 2001.  We are here to help.  We can be reached online or by phone at (505) 242-5958.

 

NM launches anti-DWI campaign to curb over-serving:  Las Cruces Sun

NM launches anti-DWI campaign to curb over-serving SANTA FE – The New Mexico Department of Transportation has launched a new campaign aimed at curbing the over-serving of alcohol to patrons at bars and other establishments around the state.

 

Studies have shown time and time again that fatigue is a significant cause of trucking accidents.  It has been shown that drowsiness causes up to 40% of trucking accidents.  Significantly, the risks of an accident increase 400% from the 8th hour of driving to the 11th.  Naturally Congress sees fit to maintain and perpetuate excessive trucker driving hours.

Congressional Response to Dangers of Excessive Trucker Driving Hours

Public safety groups have for many years sought restrictions of trucker driving hours.  What they have met instead is trucking industry resistance and lobbying.

The trucking industry is a $726 billion/year industry.  One might expect lawmakers to jump through hoops to please an industry of this size.  That is exactly what they have always done and continue to do.  Congress has once again put industry and money before the safety of citizens.  In this case, they have helped perpetuate the dangers to all drivers, truckers included, from fatigued driving.

AAA Study Show Drowsy Driving Comparable to Drunk Driving

The recent actions by Congress are all the more appalling in light of the very newsroom.aaa.com showing that sleep hours below the recommended 7 to 8 hours per night drastically increase the likelihood of driving accidents.  In fact, it has been shown that drowsy driving is comparable to drunk driving in terms of risks of accidents.

Legal Claims in Case of Drowsy Truck Accident

The risks of drowsy driving caused by excessive hours and consequent drowsy truckers is beyond dispute. The numbers speak for themselves.  Yet trucking companies continue to encourage and often demand excessive hours from their drivers.  The consequences are by sheer physics typically catastrophic or deadly to innocent folks and their loved ones on the roads.

As a result, anyone harmed as a result drowsy truck driving has very strong legal claims for both compensatory damages and punitive damages.  These are part of a personal injury or wrongful death claim.

Personal Injury Claims for Truck Accidents

In the event that the innocent victims are lucky enough to survive a trucking accident, the harm can be unimaginable to both the injured and the family.  The injuries are typically catastrophic and permanent.  With injuries of this magnitude, there is often a lifetime of lost income, medical treatment, rehabilitation, therapy, psychological and brain function issues, both physical and emotional pain to name just some of the harm resulting from the typical truck accident.

Money cannot possibly compensate the victim and family for these losses, but it is really the only recourse.  And in these cases, money compensation is absolutely necessary.  All of the harms and losses mentioned above are financially crippling in the absence of compensation.  This compensation comes only with a personal injury claim and frequently prolonged litigation.

Wrongful Death Claims for Truck Accidents

Unfortunately, death is far too often the result of a truck accident.  Death is the greatest loss that anyone can suffer.  The only thing comparable is the death of a loved one.  In the case of a wrongful death caused by a drowsy truck accident, the two go hand in hand.

Many of the harms and losses mentioned above are unique to the victim.  However, many of them are still suffered by the surviving family.  In addition, both the spouse and the children, will suffer the emotional loss of a loved one which is referred to as loss of consortium.

Punitive Damages for Drowsy Truck Accident

Punitive damages are used to punish and deter.  They punish the individual or company who has engaged in reckless conduct.  They deter other individuals and companies in engaging in that same conduct.

In cases involving excessive hours, fatigue and resulting drowsy driving, punitive damages are both appropriate and essential.  The dangers of this conduct are beyond dispute.  Those ignoring these dangers do so at their peril (and ours).

Seek Legal Guidance

Trucking companies and often individual truckers notoriously difficult to deal with in these cases.  They simply will not accept responsibility for the harm they have caused.  In fact, they often obstruct any investigation in a variety of ways to prevent liability for their negligence.

It is critical to seek the guidance of an experienced trucking accident attorney right away to protect your rights against this obstruction.  The Albuquerque personal injury and wrongful death law firm of Collins & Collins, P.C. is here to help.  We can be reached online or by phone at (505) 242-5958.

 

GOP, industry defeat safety rules that would have kept tired truckers off road | PBS NewsHour

http://www.pbs.org/newshour/rundown/gop-industry-defeat-safety-rules-kept-tired-truckers-off-road/GOP, industry defeat safety rules that would have kept tired truckers off road | PBS NewsHour  HAGERSTOWN, Md. — The trucking industry scored a victory this week when Republican lawmakers effectively blocked Obama administration safety rules aimed at keeping tired truckers off the highway. But there’s more coming down the road.

The American Trucking Associations is pledging to come back next month, when Republicans will control the White House and Congress, and try to block state laws that require additional rest breaks for truckers beyond what federal rules require. The group says there should be one uniform national rule on work hours for interstate truckers.

Another regulation that prevents truckers from working 75 hours, followed by a 35-hour break, and then resume driving again in the same week was also suspended.

Congress again ready to block rules on sleepy truckers | NJ.com

http://www.nj.com/politics/index.ssf/2016/12/congress_again_ready_to_block_rules_on_sleepy_truc/Congress again ready to block rules on sleepy truckers | NJ.com WASHINGTON — Legislation to fund the government through the end of April would continue to block federal efforts to regulate truckers’ rest hours even as the National Transportation Safety Board called driver fatigue one of its top concerns.

The spending bill would continue to block a Federal Motor Carrier Safety Administration rule setting rest requirements for truck drivers. It comes as the National Highway Traffic Safety Administration statistics showed the number of individuals killed in crashes involving large trucks rose last year to 4,067 — the highest level since 2008 — from 3,908 in 2014.

 

Jails Have a Duty to Protect Not Just Lock Up InmatesWrongful death claims for jail suicides in local jails can be brought in New Mexico under a number of legal theories, laws and statutes.  In addition, there may be a number of defendants named in these types of lawsuits.

The nature of the claims and the named defendants will be dependent upon a number of considerations.

Possible Defendants in a Jail Suicide Cases

There are a number of possible defendants in a jail suicide case, both governmental and private. It is important to identify and name the proper defendants.

There are a number of possible defendants in these cases.  The jail facility, along with the county or municipality that administers the jail will naturally be the initial targets of any wrongful claim.  However, there may be numerous players in the management and administration of the jail.

For instance, the county or municipality may contract out the management and administration of the jail to private corrections corporations.  This is actually very common which means these companies will be held responsible for negligence in the jail facilities.

Likewise, it is very common for medical services to be contracted out to private medical providers.  These are typically different than the corrections company mentioned above.  These medical providers are responsible for the medical care of inmates.  Jail suicide will typically be brought under the 8th Amendment for failure to provide necessary medical care and treatment.

Keep in mind that even though the private corrections companies and medical providers may be held liable for their own negligence in jail suicide cases, this does not get the county or municipality off the hook.  The county or municipality will still be held liable as well.

Failure to Properly Screen Inmates

The risk, warning signs and appropriate screening procedures are well-established leaving no excuse for a failure to screen for suicide risks.

One essential element of jail suicide prevention is the proper screening of inmates for suicide risks.  The risks and warning signs along with preventative screening procedures are well established.  There is no reason for a jail to fail to implement and maintain these screening procedures.

As such, a common element of these claims will be claims for failures related to policies and procedures at the jail.  The claims would involve claims for failure to establish the procedures.  The claims would also include claims for failure of hiring, training, supervision, discipline and retention of correctional officers, staff, contractors, agents, management and so on.

Again, the types of claims and the defendants named will depend upon the circumstances.  For instance, the jail may have not policies or procedures and consequently no training, supervision and so on.  On the other hand, the jail may have verbal policies that are not properly implement.  Finally, there may be written policies that are simply not enforced or otherwise taken seriously.

Each of these situations will give rise to its own set of claims.

Medical Negligence Claims

Medical negligence claims will arise under the 8th Amendment, the Civil Rights Act and the New Mexico Tort Claims Act.

Medical negligence claims for jail suicides can be brought under both state and federal law.  The basis for the state law claims will be brought under the New Mexico Tort Claims Act while the federal claims will be brought under §1983 of the Civil Rights Act via the 8th Amendment.

Again, inmates have a right to reasonable and adequate medical care.  This would include protection of inmates from suicide while in the care of jail facilities.

These claims would be tied into and related to the screening policies and procedures discussed above.  In fact, the medical provider may be at least partly responsible for establishing these procedures.  After all, these medical procedures typically handle the gamut of medical care issues including mental health.

As the mental health provider, it would be incumbent upon them to monitor the inmates for suicide risks.  This would obviously apply where the medical provider is put on notice of an inmate’s risk for suicide. But the question is more difficult when the medical provider does not have direct knowledge of the inmate’s risks.

On the other hand, a medical provider cannot bury its head in the sand avowing lack of knowledge when it is aware of or should be aware of inadequate screening.

These situations will give rise to a variety of claims against the medical provider.  The claims might be for simple medical negligence.  The claims might also be claims against the medical providers for many of the same claims set forth above related to policies and procedures.  It will be entirely dependent upon the circumstances.

Failure to Maintain Safe Jail Facilities

There is a duty to keep the premises safe of suicide hazards.

Related to the above discussion, the jail and its contractors, staff, and other agents have a duty to keep the jail safe.  This means making the jail as suicide proof as possible.

Jail suicide is most common by hanging but there are many other risks as well.  Although all possible dangers cannot be eradicated, most dangers can and should.

Again, each situation will be unique depending upon the circumstances at the jail, the individual inmate, the inmate’s risks and warning signs and so on.  Suffice it to say that with elevated risks and warning signs, the duties to keep the environment safe will likewise increase.

Do Not Delay in Seeking Legal Guidance

Deadlines on claims against jails can run quickly. Specifically, the first deadline in a wrongful death claim runs in only 6 months from the date of death.

It cannot be said too often that claims against the government have shorter deadlines than claims against private entities.  This means claims against local jails will have shorter deadlines.  The deadline that comes up quickest is the Tort Claims Notice Deadline.

In cases of wrongful death, the Tort Claims Notice runs in only 6 months on some of the claims.  If the case involves an attempted but unsuccessful suicide (i.e. serious personal injuries instead of wrongful death) then the deadline runs in only 90 days.

The deadline on the Civil Rights Claims will too have shorter deadlines.  These claims must be brought within 2 years of the date of the incident.

Do not delay in contacting a personal injury attorney experienced in civil rights.  Missing a deadline will bar those claims.

Suicide is Leading Cause of Death in Local JailsSuicide is the leading cause of death in local jails.  There is really no excuse for this.  The risk factors, warning signs and preventive measures are well known.

Despite the fact that risk factors, warning signs and preventive measures are all very clearly established, many jails have no written policies or worse yet, no policies at all on suicide prevention.

Minimal Suicide Prevention Policies and Strategies

Jail suicide risks, warning signs and preventive measures are all well established. Many of these are fairly basic and represent a the minimum threshold for protection of inmates.

As noted in our previous post on jail suicide, jails by their nature house a population highly vulnerable to suicide.  They hold high-risk groups including: young male inmates, the mentally ill, drug and alcohol abusers/addicted, and those who have attempted suicide in the past.

In particular, those inmates that have drug and alcohol abuse and addiction issues may be detoxing during the early days of their incarceration.  This intensifies the vulnerability to suicide and in fact, the suicide risk is much higher during the first week of incarceration.

This means that local jails should be aware of the risk factors and the warning signs for possible suicide.  Of course, this presumes that the local jail staff is even looking or otherwise paying attention.  This may in fact be an erroneous assumption.

Policies and Training are Essential

Many local jails lack written policies. Others lack any policies and procedures at all. This is inexcusable and a callous disregard for the rights and lives of inmates.

As pointed out, many local jails have no written policies or no policies at all regarding suicide prevention.  Many provide little or no training.  Many more provide only superficial training with no real substance.  The outcomes speak for themselves with suicide leading the way in cause of death in local jails.

The U.S. Marshalls Service report “Basics and Beyond:  Suicide Prevention in Jails” has set forth some basic requirements for suicide prevention.  A review of the list seems to suggest that these are bare minimum standards rather than a set of best practices.

The U.S. Marshalls Service has set forth a number of basic requirements of prevention of jail suicide.

Here are a few of the basic suggestions from the U.S. Marshalls Service:

  • Written policies,
  • Training of staff on suicide prevention at agency orientation training,
  • A minimum of annual refresher suicide prevention training,

The report goes on to set the essential elements of training which include:

  • Creating effective attitudes towards suicide prevention,
  • Training in the identification of risk factors and warning signs,
  • Training on the appropriate response to risks and warning signs when identified, and
  • Emergency response training in case of suicide attempts.

Preventive Measures

In addition to the general training, there are many basic preventive measures that should be implemented more globally for at-risk inmates, particularly in the early days of their incarceration.

Suffice it to say that effective suicide prevention policies, strategies and techniques are no secret.  They are well established and as one can see by a review of the basic requirements for inmate safety, relatively easy to implement.

Inmate Rights and Remedies for Failure to Adopt Suicide Prevention Policies

There could be a multitude of parties and claims. It is important to identify them all.

The lack of policy reflects a lack of concern and seriousness about the issue for which jails could face significant liability for an inmate suicide death under the 8th and 14th Amendments,  §1983 of the Civil Rights Act, the New Mexico Tort Claims Act and common law.

The claims will depend upon the entities and parties sued.  The identification of parties and claims can be fairly complicated since there may be a multitude of governmental and private entities and parties sharing responsibility for the wrongful death of an inmate.

These complications arise from the fact that many local jails have, to one degree or another, privatized operations.  For instance, many jails are entirely managed and run by private corporations.  Others may have private contracts with medical and mental health providers.

Suffice it to say that each of these entities, whether governmental or private, will have responsibility and potential liability for the suicide death of an inmate in its care.

Money Talks and It is the Only Language Many Jails Speak

Unfortunately, many local jails have not and will not change until the financial consequences for their neglect force them to adopt suicide prevention policies and procedures.

In short, there is no reason why suicide should lead the way in inmate deaths in local jails.  The only explanation is a callous and wanton disregard of the rights and welfare of the inmates.

And like most such issues, the only way to effect change is through legal action by way of civil rights lawsuits that makes neglect significantly more expensive than simple compliance with basic inmate safety measures.  In a word, money talks where pleas to basic morality fall short.

Unfortunately, this comes too late for the inmate and the families left to pick up the pieces.  On the other hand, these lawsuits may help to avoid the next tragic and unnecessary loss of life while in the care of a local jail.

 

Suicide is Leading Cause of Death in Local JailsSuicide is the leading cause of death in local jails.  Suicide surpasses drug and alcohol, accidental and homicide related deaths combined.

A study from the Bureau of Justice Statistics studying jail and prison deaths from 2000 to 2011 found that suicide for 25 to 35 percent of local jail deaths.  In 2011, suicide accounted for 35% of local jail deaths.

The rate of suicide in local jails is far too high.  The risks and warning signs are readily identifiable. As such, suicide in local jails is largely preventable yet the high rates persist.

High Rates of Suicide in Local Jails Raises Many Questions

Jail suicide is predictable and largely preventable.  Negligence alone explains the continuing high rates in local jails. 

The high rate of suicides in local jails raises numerous issues.  The most immediate question is why the suicide rate would be so high.

The high rate of suicide reflects a number of risks factors associated with jail populations.  More importantly, it often reflects a lack of preventative measures at many local jails.

The risks, the warning signs and preventative measures are well-established.  Jail suicide is predictable and largely preventable yet the problem persists.

Risk Factors for Jail Suicide

There are well established and known risk factors for jail suicide.

A report from the U.S. Marshalls Service on suicide prevention in jails addresses many issues related to suicides in local jails including the risk factors. The report breaks down the various risks in a fairly detailed fashion.

Broadly, the inmates most at risk are those in the first week of detention, pre-trial inmates, inmates suffering from mental illness, inmates housed alone in a cell and sex offender inmates.

Vulnerable Population in Local Jails

Local jails present the perfect storm of risk factors for jail suicide.

The U.S. Marshalls Report points out that jails house a population vulnerable to suicide.  There are numerous factors related to suicidal tendencies such as age, sex, previous attempts, intoxication, lack of social support, lack of family support and illness.

Notably, jails house a high number of young men, which hits two of the high-risk categories of youth and male.  Jails also have a very high rate of inmates with alcohol and substance abuse issues.

In short, jails’ environments reflect a perfect storm of risk factors that lead to the high rate of suicide.  Knowing this, one might assume that jails would take action to do everything possible to prevent jail suicide.  To the contrary, many fail to take even minimal efforts.

Many Local Jails Provide Little or No Suicide Prevention Training

Many jails have little or no training, many more have no written policies.

Despite the high risk of suicide in local jails, which plays out in actual jail suicides, the U.S. Marshall’s Report suggested that many jails do little in the way of suicide prevention.

The report suggested that many provide no annual training or worse yet, provide no training at all on suicide prevention.

Though many jails have suicide prevention policies, they typically have many shortcomings.  For instance, the policies are not comprehensive.

To make matters worse, many jails have no written policies.  A lack of written policies reflects a lack of seriousness about the problem.  Moreover, it would be exceedingly difficult, if not impossible, to implement an effective suicide prevention policy in the absence of a written policy.

Local Jails Have Legal Duty to Prevent Suicide

Inmates have many rights under the 8th and 14th Amendment and the Civil Rights Act. 

The numbers are clear on the risk and the reality of jail suicide.  Local jails have a duty to protect against jail suicide.  This means implementing policies and adhering to those policies for suicide prevention.

In the absence of policies and procedures, the jails could be facing legal liability for the death of an inmate.  The liability arises under the 8th and 14th Amendments, and the Civil Rights Act §1983.  There will also be claims under New Mexico state law.

If a loved one has died as a result of suicide while in custody, it is important to have the case reviewed as soon as possible.  The deadlines are shorter on claims against governmental entities such as local jails.

The statute of limitations on civil rights claims is only 2 years.  For state law claims, there is a 90-day deadline on sending a Tort Claims Notice.   It is very important not to miss these deadlines.

VA Hospital Delays in Medical Treatment Amount to Medical MalpracticeIt was reported last week in a number of news outlets that the Department of Veteran Affairs now admits that delayed VA Hospital treatment may have contributed to the deaths of some veterans.

Sounds like progress?  Not so fast.

There is a very wide legal gulf between “contributed to” and “conclusively” shown when it comes to fair compensation of the families who lost loved ones as a result of systemic VA Hospital medical malpractice.

Position Unchanged at VA – Prove It If You Can!

It is clear that VA Hospital delays in treatment caused harm to veteran patients no matter how the VA wishes to word it.

Despite the seeming progress, it appears that the VA’s position remains unchanged sticking to their position that it has not been conclusively shown that the delays caused  the wrongful death of veterans.

This seems to be splitting hairs, as it’s quite obvious that delayed treatment of seriously ill patients can and does result in very serious harm including death.  The wait times at some of the VA Hospitals have been reported to be as long as 21 months.

The continued suggestion that it can not be shown conclusively is simple legal positioning for what is sure to be a wave of wrongful death lawsuits, not to mention all the personal injury claims related to very serious harm caused by the delays.

Federal Tort Claims Against the VA Hospital

Families who have lost a loved one to VA Hospital neglect must bring a Federal Tort Claim against the VA.  This is not surprising.

It is extremely unlikely that the VA Hospital or any other hospital for that matter would simply start writing checks in compensation for these injuries.  Moreover, even if they did, one would be wise to think twice before accepting the check, as the VA is not known for its generosity towards veterans.

Compensation in these cases will be no different.  A veteran’s surviving family will have to fight for fair compensation.  This too should come as no surprise to veterans or their families as veterans often must fight every inch of the way when dealing with the VA.

Proving It Will Require Expert Medical Review and Testimony

A medical malpractice claim of any kind, including one against the VA, requires expert medical opinion showing medical negligence.

Obviously, the VA is not going to come clean without a fight.  Each and every family who has lost a veteran loved one due to the systemic neglect of the VA Hospital system will need to prove that the VA Hospital neglect “conclusively” killed their loved one.

In many cases, it may be perfectly clear that the delays caused the death of the veteran.  In other cases, it may be less clear.  Whether or not it is clear to the family or their lawyer, proof in these cases will require expert medical review of the file and if it goes that far, expert medical testimony at trial.

Families who have lost loved ones should not be alarmed or discouraged by this.  These cases will proceed just like any other medical malpractice case.  All medical malpractice cases require expert medical review and opinions to proceed.

Without the appropriate medical expert and sometimes multiple experts, the case does not get out of the gate.  In short, failure to obtain the necessary expert opinions will result in summary dismissal of the case.

Again, keep in mind that this applies to all medical malpractice cases, not just those against the VA Hospital.

Get the Case Reviewed

In cases of long delays and consequent harm to a veteran patient, chances are the medical records will show “conclusively” both medical negligence and resulting harm.

The VA is taking the position that it cannot be conclusively shown that the delays caused the deaths of veterans.  So the ball is in the court of the families who have lost a loved one.

The VA says prove it—so prove it.  In light of monumental levels of neglect that have already been established and even admitted by the VA, a review of the medical records by an expert may very well do just that.

 Diagnostic error leads the way in instances of medical negligence as well medical malpractice lawsuits.  Heart attack (myocardial infarction) misdiagnosis, along with cancer, the most frequently misdiagnosed condition.

In order to avoid the often deadly consequences of a failure to detect a heart attack, clinical practice guidelines have been established.  These guidelines call for specific diagnostic procedures that are dependent upon the condition and symptoms of the patient.

Diagnostic Rules are Important to Follow

Clinical practice guidelines have been established for many areas of medical service.  The guidelines provide for uniform procedures to minimize medical error.

In light of the scale and scope of preventable medical error, which causes up to 440,000 deaths each year, guidelines are important.  Unfortunately, there are many medical providers that simply do not follow practice guidelines.

In the event of a heart attack, a failure to follow the diagnostic guidelines often has deadly results.

Breach of Standard of Care

Medical malpractice claims require a showing that the medical providers conduct fell below the standard of care in the community.  The rule is typically construed as a locality rule meaning the standard is based upon the particular community.

In specialized areas of practice, the standard is typically nationally standard based upon guidelines established by the particular specialized medical industry group.  The issue of failed diagnosis of heart attacks would seem to cross over depending upon the nature of the care provided (i.e. primary care, emergency care, specialist care and so on).

Primary, urgent, and emergency care will likely have elements of both local and national standards.  However, where guidelines are established, such as the diagnosis of heart attacks, clear violations of the guidelines would likely constitute medical negligence.

Diagnostic Requirements Dictated by Condition of Patient

The level of diagnostics will be dependent upon presentation of the patient.  This is in fact where many errors are made.  The symptoms of the patient do not clearly indicate heart failure so additional testing is not done.

This would seem to make sense and this is often the response of the medical provider, i.e. the symptoms did not suggest additional diagnostics.  This position is often taken and somewhat parrots the tort reform platform that too many unnecessary tests are conducted out of fear of lawsuits.

In fact, nothing could be further from the truth as evidence by the hundreds of thousands of American deaths caused each year by preventable medical error, with diagnostic errors leading the way.

Differential Diagnosis – Rule the Worst Out First

In those cases where heart failure goes undetected despite the patient’s best efforts, the records will often show that indeed additional testing was called for.

The differential diagnosis rule requires that the medical provider rule out the worst and most serious illnesses first.  Heart failure would be among those illnesses where additional cautionary testing should be done.

This is particularly so since heart failure comes with many different indicators.  They may not all line up the medical provider’s expectations regarding the degree and number of indicators that must be present.

Differential diagnosis addresses the vagaries that might be present requiring that the medical provider conduct the diagnostics necessary to rule out the most serious conditions such as heart failure.

Heart Failure Diagnostic Procedures Fall on a Continuum of Care

The basic physical exam and history are at the base of every examination regarding possible heart failure.  From there, an escalation of various tests and diagnostics will be suggested depending upon the condition and symptoms of the patient.

The challenge in these cases is determining where on that continuum the patient fell in consideration of the differential diagnosis requirements.  There are certainly those cases where it is simply a matter of judgment with the medical provider’s judgment getting the benefit of the doubt.

Like all medical malpractice cases, a failure to diagnose heart failure must be reviewed by a medical expert.  Only a medical expert will be able to form a legitimate opinion as to whether the standard of care was met.  And this standard of care will likewise be on a continuum depending upon the nature of the medical provider (primary, urgent, emergency, cardiology…).

Seek Legal Guidance Right Away

Like any medical malpractice case, claims for a failure to diagnose a heart attack have strict and unique deadlines.

These deadlines will vary depending upon whether the medical provider is public or private, and whether the provider is a qualified healthcare provider.

It is important to seek the guidance of an experienced medical malpractice attorney in order to understand the deadlines that will apply to your case.  Missing a deadline will bar the claims completely.

 Failure to timely diagnose cancer can have disastrous consequences for the patient.  This failure can lead to serious and permanent injuries.  Far too often these failures result in the wrongful death of the patient.   In fact, diagnostic errors and the failure to diagnose cancers are the most frequently filed medical malpractice lawsuits.

Wrongful Death Often Avoidable with Early Detection

The worst and hardest part of this issue for a family to understand is that these deaths could have been avoided.  In fact, many cancers that ultimately prove fatal have very high survival rates when detected early.

The most common cancer diagnostic errors typically involve otherwise very survivable cancers such as breast cancer, colon cancer, cervical cancer and prostate cancer.  In other cases with lower survival rates, the life expectancy could be extended significantly with timely diagnosis.

Lost Chance in Failure to Diagnose Lawsuits

In those cases where the patient dies as a result of diagnostic error, the family may very well have a wrongful death claim against the medical providers.  In addition, in both cases of wrongful death and cases involving worsened outcomes, the patient and family may have claims related to these worsened outcomes under lost chance doctrines.

Under lost chance theories in New Mexico, a patient may recover for damages for those injuries that could have been avoided in case of a timely and proper diagnosis.  This could include wrongful death as well as worsened outcomes short of death.

Lost Chance Can Apply Even With Grave Prognosis

There are cases where a “favorable outcome” may be unlikely due to the nature of the cancer.  Lost chance might still apply even though the outcome was bleak from the beginning.

Lost chance does not strictly apply to potentially favorable outcomes.  This would include those cases where life expectancy could have been extended even though survival was unlikely.  There is value in an extended life even though short lived.

Proving Lost Chance  – New Mexico Jury Instruction

In order for a patient or surviving loved ones to recover for lost chance, it must be proven through expert medical testimony that the patient would have had a better outcome in the absence of the diagnostic error.

The New Mexico Uniform Jury Instruction 16-1635 states:

“A party is liable for negligence resulting in another’s lost chance for [a better outcome to] [survival from] a preexisting condition. This lost opportunity is an injury in itself …”

Of course, negligence on the part of the medical provider must be established.  In addition, the jury instruction states that the plaintiff must show that the negligence resulted in the loss of a “measurable opportunity” for a better outcome.  The measure of lost opportunity can be quite difficult particularly in those cases where the prognosis was bleak to begin.

Lost Chance Damages – New Mexico Jury Instruction

As mentioned, measuring damages can be quite a challenge.  After all, how can you put a price on an extra year, 6 months or even an extra day of life?  However, this must be done.

New Mexico Jury Instruction §13-1802A that states exactly this as follows:

“The valuation of lost chances is necessarily imprecise; the value of the loss may be established by fair approximations, by numbers or verbal descriptions, from which you will arrive at a percentage to apply to the total damages.”

In other words, you must quantify the damages.  The total damages will be apportioned between the lost chance damages and the damages inherent and unavoidable associated with the cancer.  As one might imagine, this becomes a battle of medical experts.

The medical provider will argue that all damages were associated strictly with the cancer and not the failed or delayed diagnosis.  The patient or surviving family members will likely see it much differently.  The patient’s position will have to be supported by medical evidence, which will be presented by the patient’s medical expert.

Do Not Delay Seeking Legal Guidance

As stressed throughout our website and blogs, medical malpractice cases are extremely challenging.  They can take months to even evaluate due to the need for expert review of the file.

The deadlines in medical malpractice cases are strict and often unique to medical malpractice claims.  Missing a deadline will bar the claims completely.  It is important to contact an experienced medical malpractice attorney as soon as you suspect medical negligence has caused serious injury or wrongful death to you or a loved one.

Despite the damning 46-page report from the Department of Justice, apparently the beat goes on at APD. There have numerous cases since the release of the report regarding the use of excessive and unnecessary deadly force.  Now it appears that APD will be equipping its officers with military grade weapons which in light of the DOJ findings seems very ill-advised.

New Fire-power, Old Habits

KOB news today reported that the APD has plans to purchase 350 AR 15 military rifles at a cost of $1000 each.  According to the story, these are same weapons that were used to kill the mentally ill homeless man, James Boyd.

Interestingly, the report reminded us that these weapons were in the past purchased by APD officers on their own. They were viewed as status symbols.  Following the DOJ report and the spate of shootings following the issuance of the report, officers were told to leave their toys at home.

With the plans to purchase these weapons for APD officers, the initial response prohibiting use of these personal weapons on the job seems pointless and empty.  The original response fell far short of action necessary to prevent further acts of excessive force and yet even this small progress is now being reversed.

It is worth a review of the DOJ findings in consideration of these plans.

DOJ Findings  

The DOJ findings include 31 pages of detailed incident reviews, legal analysis, and conclusions on the constitutionality of APD’s history and culture of excessive and unnecessary use of force.  The following are simply the paragraph captions.  Each has extensive support behind them in the report, which is again worth reviewing in its entirety.

One thing worth noting from the outset is the definition of range of non-lethal force to which the report refers extensively.  Less than lethal force includes, according to the report, the use of Tasers, batons, bean bags, kicks, arm-bars, strikes and so on.  Though these are not necessary lethal, they can be and they can most definitely result in serious and sometimes permanent injuries.

Without further adieu, here are the findings:

A.  APD Engages in a Pattern or Practice of Unconstitutional Use of Deadly Force.

1.   Albuquerque police officers shot and killed civilians who did not pose an imminent threat of serious bodily harm or death to the officers or others.

2.   Albuquerque police officers used deadly force on individuals in crisis who posed no threat to anyone but themselves.

3.   Albuquerque police officers’ own recklessness sometimes led to their use of deadly force.

B.  APD Engages in a Pattern or Practice of Unconstitutional Use of Less Lethal Force.

1.   Albuquerque police officers used force against individuals who were passively resisting and posed a minimal threat.

2.   Albuquerque police officers used excessive force against individuals with mental illness, against individuals with impaired faculties, and against individuals who require medical treatment. (When failure to follow commands may not constitute a refusal to comply).

 C.  Systemic Deficiencies Cause or Contribute to the Use of Excessive Force.

A number of systemic deficiencies contribute to the department’s pattern or practice of use of excessive force.  The most prevalent deficiency is the department’s endorsement of problematic police behavior by failing to conduct thorough and objective reviews of officers’ use of force.

1.         The Department’s Inadequate Internal Accountability Measures Contribute to the Pattern or Practice of Excessive Force.

a.         Supervisory reviews do not address excessive uses of force.

b.        Force incidents are not properly documented.

c.         Shooting investigations are inadequate.

d.        Internal review mechanisms are not implemented.

2.         The Department’s Training Deficiencies Contribute to the Pattern or Practice of Unreasonable Use of Force.

3.         The Department’s Deficient Policies Contribute to the Pattern or Practice of Unreasonable Use of Force.

4.         Under-Use of the Crisis Intervention Team Contributes to the Pattern or Practice of Unconstitutional Force.

5.         The Department’s Ineffective Use of Its Tactical Deployments Contributes to the Use of Excessive Force.

6.         The Department’s Aggressive Organizational Culture Contributes to Excessive Force Incidents.

7.         The Department’s Limited External Oversight Contributes to the Pattern or Practice of Unconstitutional Uses of Force.

8.         Inadequate Community Policing Contributes to the Department’s Pattern or Practice of Unconstitutional Force.

Do Not Delay – Deadlines Can be Short

if you or a loved one have been harmed and any of the findings above seem familiar to your case, you should seek legal guidance immediately.  The deadlines on claims against governmental entities such as APD can run pretty quickly.

In cases such as these, the deadlines are slightly more complicated because some deadlines will be governed by the New Mexico Tort Claims Act while others are governed by the Federal Civil Rights Act.

It is important that you understand and abide by the deadlines applying to these claims.  Missing a deadline can jeopardize your claims.

Albuquerque Personal Injury Attorneys