New Mexico Injury Lawyer Blog
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Cancer is a devastating diagnosis to all who receive it.  However, early diagnosis can aid in treatment and recovery.  Limited access to care and a type of cancer that is difficult to detect may lead to its discovery at a later stage, but what a patient does not and should not expect is a misdiagnosis at the hands of medical professionals. 466101_20161383A decision issued on September 18, 2014 by the New Mexico Supreme Court reversed a summary judgment in favor of the hospital and remanded the case back to the trial court to determine if doctors had breached standards of care in failing to tell a patient about his potential cancer diagnosis in time to save his life.  Diego Zamora, as Personal Representative of the Estate of William “Mack” Vaughan v. St. Vincent Hospital, —P.3d—2014, 2014 WL 4638900 (Case No.  33,770). 

In August of 2002, Mr. Vaughan had arrived at the emergency room of St. Vincent Hospital with abdominal pain.  He was seen by the ER doctor and a general surgeon, who called in a contract radiologist to perform an abdominal scan on the patient.  The radiologist concluded that the patient probably had a diverticular abscess, but as a secondary diagnosis, the patient might have cancer.  It is unknown whether the radiologist told the other physicians about the possibility of cancer.  The general surgeon relayed the information about the diverticular abscess to the patient and recommended he stay for observation, but the patient declined and was discharged from the emergency room.




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Screen Shot 2014-08-29 at 2.31.26 PMThe New Mexico Wrongful Death Act allows monetary recovery for a death that occurs as a result of someone’s negligence.  The statute provides that parties seeking recovery can pursue an action if legal recourse would have been available for personal injury.  Only certain family members  can recover damages as beneficiaries in a wrongful death lawsuit, such as a spouse, minor child, or parent.  Filing suit is generally handled by a personal representative, often a relative, and any counsel they employ. 

The recent state court of appeals case in New Mexico, Spoon v. Mata, addresses a denied petition for a woman (Petitioner) seeking to be a co-personal representative in a wrongful death action.  The gentleman who died had a wife and a child.  The wife filed a wrongful death action and did not name the child as an heir, awaiting paternity to be established.  Once paternity was established, the petitioner moved to intervene in the action and assert claims on behalf of the child for a loss of consortium claim and the wrongful death action. Petitioner claimed that there were conflicting interests, making a separate co-representative necessary. Petitioner’s request was denied by the district court, which reasoned that there wasn’t any evidence the child’s interests were not adequately represented.

By the briefing of the appellate case, the mother and her counsel appeared to have conceded that Petitioner should be able to intervene in the loss of consortium claim.  The Court of Appeals agreed and included that change in its Order to Remand.  The Court of Appeals, however, did not agree that Petitioner needed to be a co-representative in the wrongful death action.  The court stated that a statutory beneficiary, like the child, is owed a duty by the personal representative and the personal representative’s attorney to act with reasonable care regarding his or her interests.  After assessing the evidence and arguments submitted, the appellate court reasoned that there was nothing present to warrant the removal of the mother as personal representative, any conflict was merely potential and not actual, and there were other legal avenues to ensure a good result for the child, like the appointment of a guardian ad litem.  The Court determined that the Wrongful Death Act was structured to avoid each individual beneficiary pursuing his or her own claim.  The opinion ended with the appellate court stressing the importance of the child’s claims being thoroughly considered by the personal representative and the personal representative’s attorney.

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In the summer months, you may come across construction on state highways and county roads that typically require you to avoid items on the road, drive at reduced speeds, and increase awareness on the road.  Even with safety precautions in place, these New Mexico road construction sites can be conducive to an auto accident.  Like other automobile accidents, another driver may be responsible for your injuries, but the state of New Mexico may be liable as well, depending on what caused the accident.

break-682825-mIn a recent decision, the New Mexico Court of Appeals allowed the estate of a woman killed in a fatal car accident to proceed with their law suit against the Dept. of Transportation (DOT).  In Lujan v. New Mexico Dept. of Transportation, the driver was killed after her car flipped several time due to semi-truck tire debris left on an exit ramp.  Her estate alleged that the DOT failed to clean off the debris in a timely manner, which led to the driver’s death.  In the original suit, the trial court dismissed the claim against the DOT at the summary judgment stage, after it was established the DOT had no constructive knowledge of the tire debris.  The Court of Appeals disagreed with the lower court’s determination, and held that fact-finders could conclude that the DOT failed to uphold its duty to regularly inspect and maintain safe highways.

In personal injury cases, it is necessary to show that the at-fault party owed a duty to the party that was injured.  In Lujan, the general duty of the DOT to provide safe roads to the public was not questioned; instead, they inquired about whether knowledge of the debris was necessary for the duty to remain in place.  The Court of Appeals acknowledged that much of New Mexico case law surrounding the DOT’s duty to the public centered on fact-specific inquiries to determine whether a duty was owed to the injured or deceased party.  The Court pointed to the state Supreme Court’s recent definitive turn away from fact-specific inquiries to answer whether a duty was or was not present in Rodriguez v. Del Sol Shopping Ctr. Assocs. Continue reading →

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The New Mexico Supreme Court issued a decision this month that reviewed the changes made to the UM/UIM coverage requirements and assessed whether they applied to claims and contracts that pre-date the law.  In Montaño v. Allstate Indemnity Co., the Supreme Court changed the law to protect the rights of the insured.   Now, if an insurance company wants to limit its liability, the carrier must provide the insured an opportunity to reject the coverage in writing after reviewing the entire policy.  Another case, Jordan v. Allstate Ins. Co., which held that UM/UIM coverage rejection must be provided in writing to the insured, arrived soon after the holding in Montaño, and in that case the court declined to limit the application of the ruling to future cases.

1370556_32170671The plaintiff in the recently released decision, Whelan v. State Farm Insurance Co., was the owner of a car involved in an accident with his father in 2002 that eventually led to his death in 2004.  The owner of the car and insurance policy did not have UM/UIM coverage, but he was insured under a $50,000 liability policy.  Since he did not have UM/UIM coverage, he was only able to recover the amount carried by the at-fault driver, which was $25,000 worth of insurance.  After the ruling made in Jordan in 2010, the driver demanded $25,000 to equalize the UM/UIM total of $50,000.  The insurance company declined to extend and back date the coverage, citing a limitations provision in the policy that barred recovery unless civil ligation commenced within six years after the date of the accident.

The insured man filed for a declaratory judgment against the insurance company to follow the holdings of Jordan and Montaño. The district court agreed with the insured man and determined that UM/UIM coverage must be equalized to the limits of the policy’s liability coverage, and that policies that previously rejected UM/UIM coverage can be retroactively invalidated, pursuant to the New Mexico Supreme Court holdings.  The district court also held that the language in the policy limiting the ability to make UM/UIM claims within six years was also unreasonable and unenforceable. Continue reading →

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When you’ve been injured in a New Mexico car accident, one easily thinks of the other driver as the liable party.  However sometimes car accidents are caused by a defective car or car component.  Manufacturers may be held accountable under the legal theory of strict liability if the product causes harm due to an unreasonable risk of injury from its condition or use.  The risk of harm becomes unacceptable under the law, if a reasonable person with full knowledge of risk finds it unacceptable.  Strict liability applies to all manufacturers of all products, including children’s toys, power tools, or devices used for medical procedures.  

A New Mexico Supreme Court case, Sabrano v. Savage Arms, Inc., recently focused on whether or not a gun manufacturer can be held liable for the injuries and ultimate death of a woman who was killed by a man using a rifle that was manufactured and paired with a lock.  The perpetrator used a key not designated for unlocking to unlock the lock and use the rifle.  The gun manufacturer moved to dismiss at the trial court level, alleging that it was immune from the strict liability suit under the Protection of Lawful Commerce in Arms Act (PLCAA).  The PLCAA provides gun manufacturers a shield from suit when the harm is solely caused by the criminal or unlawful use of firearm products by others when the product is functioned as designed as intended.  (See 15 U.S.C., Sec. 7901 (b)(1)). 

1434765_94848220The deceased’s estate avoided dismissal at the trial court by pointing to the fact it was the lock, an accessory made by a gun manufacturer, that malfunctioned – not the rifle itself.  The estate argued that this detail removed the shield of the PLCAA.  The Supreme Court, assessing the language and intent of the statute, disagreed.  The Court ultimately determined that because the death ultimately resulted from the action of a third party using the rifle for criminal and unlawful use, the PLCAA remained intact for the gun manufacturer.  While the Court found that an exception did not exist for the gun accessory, the Court did allow the claim against the lock distributor to stand.  The Court also found that the PLCAA’s exception for breach of contract or warranty did not apply to the lock. Continue reading →

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A recent Federal Court of Appeals case discusses whether or not a New Mexico family truly rejected additional Uninsured/Underinsured (UM/UIM) coverage as dictated by New Mexico law.  The man was seriously injured in a car accident and incurred more than $200,000 in medical bills.  The injured man held a policy through GEICO, which covered bodily-injury coverage of $50,000 per person and $100,000 per occurrence. The other driver was underinsured and didn’t have enough out of his policy to make up the difference, so the injured man looked to make an UM/UIM claim.

251732_4297The initial policy issued in 2009 also provided UM/UIM bodily coverage limits of $25,000 per person and $50,000 per occurrence on each vehicle. Later, GEICO sent out forms to the family titled a “new business packet” that included the policy, endorsement declarations, and UM/UIM option form.  Two pages were provided with check boxes on each page.  The first box was next to a paragraph that showed the policy holders agreed that they understood the policy and the election of UM/UIM coverage, and it was followed by a second paragraph rejecting the UM/UIM bodily injury coverage.  The box on this page was checked.  The second box was next to a paragraph with an explicit acceptance of UM/UIM coverage, followed by several options of varying amounts of coverage.  This was left unchecked, and the whole form was signed and returned to the insurance company.  The company acknowledged the change by sending back an acknowledgment along with a refund of the amount paid for that coverage.

Less than three months later, the husband was injured in the car accident.  When they sought coverage under the UM/UIM policy, the insurance company denied the claim and pointed to the rejection.  The family filed suit, and the insurance company argued that the rejection was valid under the New Mexico law, which requires written rejection of the explicitly written policy option.  The victim countered that the option form did not meet the legal standards because they were not presented with a discussion or explanation of the stacked coverage.  The 10th Circuit Court agreed with the insurance company and found that the signed form complied with New Mexico law and was consistent with other recent state Supreme Court decisions. Continue reading →

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New Mexico catastrophic accidents are events that no driver or pedestrian expects.  Accidents involving large semi-trucks or tractor-trailers often involve life-threatening injuries for all parties affected by the accident.  Recent attention has been given to a fatal accident involving a well-known comedian, particularly after it was revealed the driver admitted to being awake for over 24 hours.  In 2011 alone, there were 88,000 victims of large-truck crashes with 3,700 killed in that year.  The National Highway and Traffic Safety Administration reports that fatalities increased in 2012 by four percent to 3,921.  By far, these accidents affected occupants of other vehicles far more than the people in the trucks.

291281_4378Truckers are currently under a 14-hour restriction for time on the road.  Recent efforts by the trucking industry have been made to lift that restriction so drivers don’t feel compelled to push through the 14 hours rather than take a nap, since the nap during the 14 hours doesn’t extend the time allotted by regulation for driving a commercial vehicle.   Other truck driver regulations include a mandated 30-minute break after the first eight hours, a limit of 70 hours on total driving time for an eight-day period, and a mandated 34-hour break once a week.  The trucking industry has pushed back against the regulations, but the Federal Motor Carrier Safety Administration has placed the blame on trucking companies’ over-stringent expectation placed upon the drivers to deliver goods by a specific time.

In addition to driver behavior, regulations also guide how trucks are constructed, maintained, and used to transport hazardous materials.  When a truck accident occurs in New Mexico, an experienced attorney can help thoroughly investigate what party is responsible.  Drivers must enter their activities in a log book that tracks their hours of service in a 24-hour period to avoid overly fatigued drivers.  Unsafe driving, whether exhausted or not, is still an unfortunate reality inherent to the profession due to the incentive to make or beat deadlines.   Post-accident documentation reveals that drivers self-medicate to stay awake through use of illegal drugs or abused prescription medication. Immediate investigation can help determine whether the driver or the company failed in their duty to maintain safe practices.  Like airplanes, commercial trucks have black boxes that record the drive and can help determine the specific occurrences involving the truck. Continue reading →

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Accident and injury can happen anywhere in New Mexico, but if a slip and fall or work injury occurs on government property or from the error of a government employee, the path to recovering damages presents different obstacles.  Hiring knowledgeable New Mexico personal injury attorneys is the best way to navigate these legal obstacles.  Sovereign immunity is a legal doctrine that emerged to protect government entities from liability so that government authorities would not be constantly bombarded by lawsuits and can readily move forward with civic matters.  In New Mexico, sovereign immunity is codified in the Tort Claims Act.  The Act, created in 1975, formally legislated sovereign immunity but allows suit against the government in certain, specifically defined instances.

533138_45768535For a suit to move forward against a New Mexico government entity, the action must be 1) based in one of the defined exceptions to the statutory immunity in the Tort Claims Act, and 2) committed by a public employee acting within the scope of his or her governmental duty.  Case precedent and statute defines the duty and responsibility of the employee.  In a recently published decision, Tellez v. City of Belen, the Federal Court of Appeals assessed whether or not the district court erred in its exclusion of facts included in affidavits for the deceased’s estate.  The appellate question rested on the defendant claiming sovereign immunity, which shifts the burden to the plaintiff to show the at-fault party violated a clearly established constitutional right.

The initial facts of the case involved an officer called to the scene of a fight between brothers.  One brother stabbed the other, and police were called.  The brother who committed the stabbing allegedly had a rifle which he refused to lower, and the officer shot and killed him.  The father filed suit under 42 U.S.C. section 1983 on behalf of his estate, claiming the officer used excessive force in violation of the Fourth Amendment.  The officer asserted qualified immunity, and the district court granted the summary judgment motion to dismiss the claim.  The court determined the officer did not violate the constitutional rights of the deceased, and the Court of Appeals agreed with the lower court’s assessment.  To combat the motion for summary judgment, the deceased’s estate provided affidavits of the deceased’s brother and a neighbor, who both claimed the deceased never had a weapon.  The lower court rejected these statements, measuring them against other eyewitness statements and video of the deceased with a weapon.  The Court of Appeals opinion supported the district court’s action of excluding the statements, pointing to the Supreme Court decision in Scott v. Harris, 550 U.S. 372 (2007), that established a court should not adopt a version of facts that is blatantly contradicted by the record.  The Court of Appeals also determined that, given the totality of the circumstances, the officer’s use of force was not excessive. Continue reading →

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A recent New Mexico Supreme Court case firmly established that foreseeability should not be considered when determining whether or not a duty exists.  The appellate decision arose out of a tragic, large-scale accident in Santa Fe where a truck crashed into a shopping center, killing three people and injuring several others.  The estates of the deceased filed suit against the shopping center, claiming the shopping center was also negligent and contributed to the accident.  The deceased’s estate claimed the shopping center failed to do several things, including posting signs, installing speed bumps, erecting barriers, or using traffic control devices.

In New Mexico personal injury law, an at-fault party can be held liable to an injured person only if the at-fault party owed a duty under state or federal law to the injured.  Drivers have an obligation to drive safely and follow the rules of the road, and businesses must provide safe premises to their patrons.  When the failure to uphold the duty causes an accident, the person or entity causing the injury can be held responsible in a civil court for the negligence.  Often in personal injury case law, the term “foreseeable” is used.  To determine liability, one or both parties presents the question to a jury of whether or not an accident or injury should have been reasonably expected, or foreseeable, by the owner or operator of the business or vehicle.  In Rodriguez, et al v. Del Sol Shopping Center, et al., the Supreme Court strongly established that foreseeability should not be considered in a policy argument because it can change greatly with the slight changes of facts in individual scenarios.  In this case, the Supreme Court points out that foreseeability is appropriate to analyze whether there was a breach of duty as a matter of law, but it should not be used to determine the duty’s existence.

1207877_17659484If danger or risk can be expected by a business owner or particular party, the responsibility to  guard against the danger or risk increases along with the amount of inherent risk.  The Supreme Court discussed case law precedent that maintains the risk or danger does not have to be specific but can be general.  The Supreme Court wrote in the decision that the shopping center owed the deceased patrons an ordinary duty of care under the circumstances, including the duty to prevent harm from a third party.  Limitations and exemptions to the duty of ordinary care form part of policy considerations, but it is up to the owner or operator to establish those limitations and exemptions.  Ultimately, the Supreme Court determined it was appropriate for the Court of Appeals to leave the question of foreseeability to the jury and focused much of the decision on the legal clarification of foreseeability, duty, and when duty should be limited. Continue reading →

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A New Mexico man was the victim of a fatal motorcycle crash at the end of April on Highway 31 outside of Carlsbad.  The motorcyclist crossed the center lane and struck a vehicle head-on that was driving in the opposite direction.  The man sustained a catastrophic injury in the form of severe head trauma, and was not wearing a helmet.  The motorcyclist was pronounced dead at the Carlsbad Medical Center.  While alcohol was not suspected, the ultimate cause of the accident remains unknown.

1191472_55648235Because of its inherent vulnerabilities, motorcycle accidents can cause the most severe type of injuries, also known as catastrophic injuries.  Catastrophic injuries include brain injury, spine or spinal cord injury, or any other type of permanent impairment or condition that causes loss of use of a body part or system.  These injuries require lifelong care and substantially impact the injured’s ability to earn income.  Recovering damages from a negligent motorist or manufacturer can be essential to regaining financial stability, and the New Mexico motorcycle accident attorneys at Parnall Law have the experience you need to aggressively pursue a personal injury or wrongful death claim.

New Mexico does not require adults 18 and over to wear a motorcycle helmet, but the motorcyclist’s choices prior to the accident, like not wearing a helmet, could be considered by the at-fault party as contributions to the accident and injury or death.  In any personal injury accident, the injured must show the at-fault party failed in their duty to others on the road to drive safely, and that this failure caused the accident that led to the injury.  The injured must show the amount of damages sustained by the injury, but the injury may be reduced if the injured is also found to be negligent.  New Mexico is a comparative law state that allows a fact finder to reduce the amount of damages awarded by the amount of the injured’s negligence.  For example, even if the injured is found to be 52% at fault, he or she can recover 48% of the damages available. Even though shared responsibility does not bar recovery, it is important to have experienced counsel to demonstrate how the other party bears a greater share of the fault, so your reward can be maximized. Continue reading →

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