Personal injury and wrongful death claims cover a wide range of law and cases. For the most part, personal injury and wrongful death claims are governed by the same laws, rules, insurance issues, deadlines, and other principles.
As such, in New Mexico, they both fall under the umbrella of personal injury law and are handled by what are customarily referred to as personal injury attorneys.
The thing that separates the two are the recoverable damages (known as allowable compensation). In most cases, a wrongful death attorney in Albuquerque may be able to recover far greater damages than they would in a personal injury case. However, there are situations where the damages may be much higher in case of very serious personal injuries due primarily to future medical expense and lost future wages.
Wrongful Death Law and Process in New Mexico
Wrongful death claims fall under personal injury law but there a a few special rules that apply under the New Mexico Wrongful Death Act. In New Mexico, wrongful death claims are based in statute and in tort. What this means is that there is both a statutory basis as well as a common law basis for wrongful death claims in New Mexico.
In practice, this means that the personal injury law, process and procedure will govern for the most part in a New Mexico wrongful death action. However, there are also specific and firm requirements under the New Mexico Wrongful Death Act (the Act).
We will address both briefly below. Keep in mind that this is only a brief overview and these cases tend to get quite complicated due to the magnitude of the loss and damages to the deceased and the surviving family.
Important First Steps in a New Mexico Wrongful Death Claim
There are a number of very important first steps that must be taken in a wrongful death claim to protect the rights of the deceased and the surviving family members or loved ones. Though legal issues are probably the last thing that the family wants to deal with following the death of a loved one, it is very important to address these issues.
Because the family and loved ones are dealing with far more important matters, it is highly advisable to seek the guidance of an attorney experienced in wrongful death matters. The Albuquerque personal injury attorneys at Collins & Collins, P.C. are here to help you through this difficult time by taking on the burden of the legal requirements necessary for protecting and pursuing a wrongful death claim
Appointment of Personal Representative Necessary for Collection of Private Documents
The first steps for the most part all involved the collection of records and documents surrounding the loved one’s death. The documents set forth below are essential for the evaluation of the claims and can typically be acquired without the assistance of an attorney or the courts.
Others which will be essential to pursue the claims will be protected by privacy laws requiring the appointment of a personal representative under the New Mexico Wrongful Death Act.
An experienced wrongful death attorney can help to get an eligible surviving family member or, depending on the circumstances, a third party trustee appointed personal representative.
The personal representative will then be able to collect all necessary records, even those such as medical and employment records which are protected by privacy. If necessary, which is sometimes the case, the personal representative may collect these records by subpoena from the court.
Gather Essential Documents and Records
It is important to gather a number of documents and records for a couple of reasons. First, these documents and records will be necessary for the pursuit of the wrongful death action. Second, these records are necessary for an attorney to evaluate the wrongful death claim. As mentioned, here and elsewhere, a wrongful death action follows many of the same principles as other personal injury claims.
This means that at a minimum there must be liability for the wrongful death. “Liability” invokes many issues that will not be addressed here. Suffice it to say that there can be death cases where there is no liability under personal injury law. This may be the case even where negligence of another was the cause of the death. One and perhaps the most frequent example involves work related deaths.
Incident Reports: These come in a wide variety of forms depending on the nature of the accident or incident that led to the death. In auto accidents, there would be police reports and extensive investigations related to the death. In work injuries, there will be at a minimum OSHA reports and there may be many other reports depending upon the industry.
Death Certificate: The death certificate can most often be collected without the assistance of an attorney or the appointment of a personal representative. The death certificate can be obtained by immediate surviving family members through the New Mexico Bureau of Vital Records.
This document is very important. The death certificate will state an initial finding regarding the cause of death. However, this statement of cause is not always entirely accurate and should not necessarily be taken at face value.
Report and Findings From the Office of the Medical Investigator: These reports are much more extensive than the death certificate. The death certificate should reflect the Office of Medical Investigator (OMI) report. However, on occasion, there are discrepancies. The OMI report will provide very valuable information with conclusions as to the causes of death.
Again, these are not always entirely complete or accurate. As such, they should be read carefully and submitted to an expert for review if there is cause for concern regarding the findings. On the other hand, these reports are generally accurate and typically sufficient for a determination of the cause of death.
Contact an Attorney Experienced in Wrongful Death Claims
These are only the minimal first steps in a wrongful death claim. There are many more that will be very important as the case progresses.
Wrongful death claims can be very complex and challenging. This reflects in part the magnitude of the damages. This alone will cause the defendant who is usually represented by an insurance company to dispute the claims at every turn from the cause of death, to liability, to fault and then to damages.
Due to the complexity of these cases and the fact that insurance companies will almost always dispute significant portions of the claim, it is exceedingly unwise to deal with the insurance companies without an attorney.
Do Not Deal With the Insurance Company Alone!
The insurance company will be looking for every opportunity to minimize the payout. This means that anything you say can and most assuredly will be used against you.
In short, do not talk to the other party’s insurance company without an attorney, if then. There is far too much at stake for you and your family to try to handle the insurance company on your own.
Damages in a New Mexico Wrongful Death Case
The harm caused by the wrongful death of a loved one is incalculable for the surviving family members. Though it may seem impossible and almost crass to do in light of the priceless loss of life of a loved one, it is necessary to calculate damages.
What are Damages?
Damages are all the injuries, losses, expenses and other harm resulting from the wrongful death. In New Mexico, there are well established jury instructions on what damages may be recovered in a personal injury action. A wrongful death claim is at its essence a personal injury claim. As such, the jury instructions for personal injury damages apply equally to wrongful death.
Though the jury instructions are the same in both personal injury and wrongful death actions, the makeup of the damages are likely to differ significantly. In addition, the damages for wrongful death will in most cases greatly exceed those in a personal injury claim involving similar circumstances absent the death of the victim.
Recoverable Damages in a Wrongful Death v. Personal Injury Claim
In a personal injury action, the primary recoverable damages include compensatory damages, medical expenses (both past and future), pain and suffering, loss of consortium, and on rare occasions, punitive damages. Upon review of these damages, it is clear how the damages calculation will differ significantly in a wrongful death action versus a personal injury action.
For instance, there will be no future medical expenses. Regarding damages for pain and suffering, there might be an award for pain and suffering by the victim up to the death, but there will be no ongoing pain and suffering for the victim. Keep in mind that pain and suffering type damages might be available under limited circumstances where the survivors witnessed the death.
Compensatory v. Punitive Damages
The compensatory damages include many elements and will vary somewhat between the two types of claims. These damages are to compensate for losses. Punitive damages are meant to punish and to deter future similar conduct. Punitive damages will vary in their calculation as a multiplier of compensatory damages. However, just as with personal injury claims, punitive damages are rarely awarded or even presented to the jury in a wrongful death claim.
Loss of Consortium Significant in Wrongful Death Case
Loss of consortium for the surviving loved ones can be a significant portion of damages in a wrongful death action. In personal injury actions, the decision to bring a loss of consortium claim is more difficult.
This is because the discovery on the loss of consortium claims can be quite invasive and sometimes humiliating with the defendant attempting to attack every aspect of the relationship between the victim and the spouse. As a result, unless the loss of consortium is significant, it may not be worth it.
In a wrongful death action, the loss of consortium is huge due to the loss of a spouse, child or parent. This can in fact be the greatest harm to the surviving loved ones.
Loss of Income Often Large Part of Damage Award in Wrongful Death
All of these losses and harms are huge. However, it may come as a surprise to many that the greatest element of damages in a wrongful death case is loss of income. Loss of income calculations in personal injury actions can be much more difficult due many complicating factors such as the possibility of replacement earnings by the victim. In the case of death, there simply is no more income.
The loss of income calculation will depend on many factors. The ultimate calculation is income earning potential over the projected remaining life expectancy of the deceased. As such, the age of the deceased is very important. So too is the income earning capacity for the person. The higher the income earning capacity, the higher the expected lifetime of earnings.
Income earning capacity will be estimated by an expert economist. This will take into account the educational background, the avocation or profession of the deceased, the earnings at death, the history of earnings, and so on. It is not hard to calculate the immense losses of income even for a younger person earning minimum wage. The math at its heart is fairly straightforward for such a case with the loss of earnings calculated as annual wages (factoring in increases in wages over time) times the number of years to average life expectancy.
The calculation can get very complicated pretty quickly for upwardly mobile professionals and other high income individuals. This is why an expert economist is necessary. However, for younger workers and workers that are in their prime with a number of years remaining in their income earning lifetime, the loss of earnings can be enormous.
Tort (Personal Injury Law) Basis for Wrongful Death Claims
Specifically, wrongful death claims follow the law, process and procedure of other personal injury claims. This makes sense since wrongful death actions may arise out of any number of situations which in the absence of death would give rise to personal injury claims.Any personal injury claim can turn into or begin as a wrongful death claim with law of torts applying to all.
By way of example, wrongful death may result from any number of situations such as auto accidents, medical malpractice, nursing home neglect, construction accidents, defective products, dangerous business premises, dangerous homes (as a guest), and so on. In fact, without enumerating them all, any personal injury type claim can turn into or begin as a wrongful death claim.
The law, process and procedure will vary depending upon the type of claim that is involved. For instance, the law on auto accidents, medical malpractice and work injuries vary enormously between them as do other areas of personal injury law. However, there are common threads as well.
In fact, there will be overlap much of the time on the principles, particularly in the area of injuries and damages. However, it is extremely important to keep in mind that each has its own unique requirements (including deadlines, expert needs, damage caps and more) which must be followed strictly in order to fully recover on the claims.
Statutory Basis for Wrongful Death Claims in New Mexico
In addition, wrongful death claims are addressed by statute in the New Mexico Wrongful Death Act. The Act covers quite a bit of ground and much of which will not be covered here. However, the initial step of the appointment of a personal representative will be addressed since this is a critical first step without which the claims cannot proceed at all. This applies even if the case is settled, and it is not necessary to file a lawsuit.Appointment of a personal representative is a critical first step in all wrongful death claims.
Under the Act, the surviving spouse, child, or parent may bring an action on behalf of the deceased. In order for a surviving family member to bring a wrongful death claim, a personal representative must first be appointed under the Act.
The personal representative is often a surviving family member. This would generally be the surviving spouse, one of the children or parents. However, the personal representative need not be a family member and there are occasions where it is best to have a third party Trustee act as the personal representative. This might be done for a number of reasons.Family members may have separate claims but personal representative alone can address the claims for the deceased.
Appointed of the personal representative allows the personal representative to handle a number of critical tasks on behalf of the deceased. Keep in mind that the surviving family members may have claims of their own. However, the personal representative alone has authority under the Wrongful Death Act to act on behalf of the deceased.
Albuquerque personal injury lawyers, Collins & Collins, P.C. handle a wide variety of injury and wrongful death cases including medical malpractice, auto accidents, trucking accidents, slip & fall accidents, defective products and nursing home abuse & neglect.
Though located in Albuquerque, Collins & Collins, P.C. handles personal injury matters throughout New Mexico in both state and federal courts so long as there is court jurisdiction in New Mexico.
If you or a loved one have by harmed by the negligence or other wrongdoing of another, feel free to give us a call at (505) 242-5958 or contact us online for a free case review.
The Essence of a Personal Injury Claims is that One Person is Harmed by the Wrongdoing of Another
Despite the wide variety of cases, the essence of a personal injury claim is that one individual is harmed by the wrongful behavior of another. The wrongful behavior that serves as a basis for a personal injury claim may involve simple negligence. In other cases, the behavior may be construed as reckless. Then of course, there can be actual intentional harmful acts that may even be criminal in nature.
Defendants Come in All Shapes and Sizes
The responsible party, or the defendant in case of a personal injury lawsuit, can be an individual, company, business, non-profit, corporation or governmental entity. Often, the greatest challenge to a personal injury lawsuit is in identifying financial resources for the recovery of damages.
In cases of individual defendants, there may simply be no money or assets to recover. In cases of business and corporations, there may be bars to suit in cases of New Mexico Workers’ Compensation Act exclusive remedy provisions. There are many more bars against governmental claims.
Strict Deadlines Apply to All Personal Injury Claims
There are also strict statutes of limitations on personal injury claims. The statute of limitations for claims against the government is only 2 years. In addition, there is a 90 day tort claims notice requirement for claims against any local, county or state governmental entity. To confuse things even further, claims against the federal government have their own set of complex procedures. Claims against private individuals or entities have a more generous 3 year statute of limitations but even this can sneak up on injured persons if they delay in pursuing their claims. Failure to meet the deadlines in a personal injury claim will bar the claim completely.
Many Potentially Complex Issues in Personal Injury Lawsuits
The issues of liability and fault, statutes of limitations, and identification of the proper and financially responsible defendants can range from the simple to the extremely complex. The insurance issues can be extremely confusing and frustrating. Every case is different requiring careful evaluation. Delay in addressing these issues can be very detrimental, and sometimes fatal to a personal injury claim.
No Substitute for Experienced Legal Counsel
Hopefully, the pages that follow will provide some insight. However, they are not intended as a substitute for consultation with an experienced injury or accident attorney, nor are they intended as legal advice to guide those seeking to go it alone. Personal injury claims are extremely complex and rife with hazards for the untrained. To pursue a claim, it is highly advisable that an injured person seek the guidance of an experienced personal injury attorney.
Deadlines on Wrongful Death Claims in New Mexico
The wrongful death of a loved one is almost unbearable. By definition, this means that the loved one died as a result of the negligence or other wrongful act of another. Although difficult, and likely the last thing that most people in this situation want to worry about, legal issues must be addressed without delay.
The Albuquerque Attorneys of Collins & Collins, P.C. understand that the surviving family of a wrongful death victim have too much on their plate to deal with the legal issues that must be addressed on these claims. We are here to help and to take care of all those necessary tasks to insure that justice is done for you and your deceased loved one.
Wrongful Death Deadlines Much the Same as Other Personal Injury Deadlines
Wrongful death is the ultimate and most tragic of all personal injury claims. However, these claims are treated much the same in terms of the deadlines that apply. As a result, it is important that surviving family or loved ones understand these deadlines and that despite the enormity of the loss, realize that there is no leniency with regards to missing a deadline.
Tort Claims Notice on Wrongful Death Claims
The New Mexico Tort Claims Act sets deadlines for personal injury claims against governmental entities or actors, including wrongful death actions. One very critical deadline under the Tort Claims Act is the Tort Claims Notice deadline.
The Tort Claims Notice provision under the Act requires that the proper governmental entity be given notice of possible personal injury claims within a certain period of time. There is a very short extension of this period of time for wrongful death cases.
The Tort Claims Notice for most personal injury claims is only 90 days from the date of the subject incident. In cases of wrongful death, the Tort Claims Notice deadline is extended to 6 months from the date of the occurrence of the event that caused the wrongful death.
Keep in mind that the notice does not run from the date of death. It runs from the date of the “occurrence of the injury which resulted in the death.”
This means if there is an injury caused by a governmental entity or actor, a Tort Claims Notice should be sent right away after the incident. This notice will suffice for both the personal injury claims and the wrongful death claims in the unfortunate event that the injuries ultimately lead to death.
Statute of Limitations on Wrongful Death Claims in New Mexico
The statute of limitations on personal injury claims apply to all personal injury claims, including wrongful death actions. Like other personal injury claims, the statute of limitations will vary depending on whether the defendant is a private or governmental party.
Like all personal injury claims, there is a three year statute of limitations on wrongful death claims against private parties such as individuals, businesses, corporations and the like. There are very few exceptions.
Again as with personal injury claims, the statute of limitations is shorter for wrongful death claims against governmental entities or actors. In cases against the government, the statute of limitations is only 2 years. Here too there are very few exceptions.
Start Date for Tort Claims Notice and Statute of Limitations Differ
There is one very important point to consider in cases against the government versus those against private parties. With the Tort Claims Notice requirement above, the deadline begins to run at the time of the injury or event that led to the wrongful death. With regards to the statute of limitation for filing an action, it runs from the date of death.
The failure to make the distinction can be disastrous. It may be that a lawsuit for wrongful death is filed within the 2 year period but be barred by failing to timely file the Tort Claims Notice. This might occur even though the Tort Claims Notice was sent within 6 months of death. No matter how unfair this may seem, the deadlines are very strict with extremely rare exceptions.
A Missed Deadline Will Bar Wrongful Death Claims! Do Not Delay!
As mentioned, there are very strict deadlines on all personal injury matters. In cases against a governmental entity or actor, the first deadline runs in as little as 90 days. In addition to the deadlines, there are some important first steps take in personal injury case. These will depend on the type of case, the nature of the defendant, the nature of the injuries and other unique circumstances in each case.
Missing a deadline in a wrongful death case will bar the claim completely no matter how great the loss. So no matter how much a survivor may be suffering as a result of the horrible loss of a loved one, it is important not to delay in seeking the guidance of an attorney experienced with wrongful death claims.
Let the attorney deal with these issues while you and your family deal with more pressing matters.