Archive for February, 2010

Four General “Truths” Regarding New Mexico Medical Malpractice Claims:

Friday, February 19th, 2010

1.            In general, any medical malpractice action for injury or wrongful death must be brought within three years from the date when the alleged malpractice occurred.  This is referred to as the Statute of Limitations.  There are some instances when the Statute of Limitations is less than three years.

2.            A claimant’s negligence will never bar recovery but, instead, will only reduce the claimant’s recovery in proportion to his comparative fault.

3.            Claims of medical malpractice against a “qualified health care provider” are limited to a recovery of $600,000 which applies to all damages, with the exception of punitive damages and damages for medical expenses.  Most doctors are “qualified health care providers” whereas most hospitals are not.

4.            Generally the state and its political subdivisions have immunity from a tort action.  Such immunity is inapplicable to medical malpractice actions if an employee of the state or any one of its political subdivisions                 was negligent while acting within the scope of his employment.  Please note, New Mexico law requires that a Tort Claims Notice be filed with the appropriate state agency within ninety days of the alleged act.  There are few exceptions to this requirement.

To Be or Not to Be Divorced or Separated

Tuesday, February 16th, 2010

What is the Difference between Divorce and Legal Separation?

A divorce ends a marital relationship. Specifically, you file a Petition of Dissolution of Marriage and the court ultimately enters a Decree of Dissolution of Marriage which terminates the legal marital relationship. There is no such thing as a common law divorce in New Mexico. In order to get a divorce all you need are “irreconcilable differences” in the marriage. This is what is typically referred to as “no fault divorce.” Marital misconduct is generally not a factor unless it has an impact on the children or the equitable division of the marital estate. New Mexico also allows for a “fault” divorce which can be based on adultery, abandonment, and cruel and inhuman treatment.

A legal separation is the same in all respects to a divorce, with some exceptions. First, the marriage is not terminated. Second, the parties are not free to remarry. Third, the petition is called a “Verified Petition for Legal Separation.” Fourth, the decree is called a “Final Decree of Legal Separation.” Many people often get a legal separation versus a divorce for religious reasons or because they want their spouse to retain the rights to some form of benefits which they would loose in a divorce.

Call us today for more information regarding the differences in divorce versus a legal separation.

New development with the processing of SSI/Social Security disability claims in New Mexico.

Tuesday, February 16th, 2010

We have started receiving correspondence for some of our Social Security disability clients that is from Social Security offices in Arkansas.  When I received the first one, I figured there had to be some kind of mistake, or thought perhaps my client had moved and failed to tell me.  When I called the office in Arkansas, the nice lady told me they are now helping process some of the claims in New Mexico due to the backlog of cases here.

I consider this very good news because it means someone is working the file and trying to keep it moving forward.  Local Social Security offices all over the country are understaffed and as a result get behind on their caseload which translates in to delays for the claimants.  I think it is a great idea for some of the offices that are not overloaded to help those that are.

Hopefully this trend will continue which will mean reduced time that it takes to receive a response at the various levels of appeal.  I have no problem working with an office in Arkansas if it means my clients get their disability benefits sooner.

Common mistakes people make when applying for SSI/Social Security Disability benefits? (Part 2)

Monday, February 8th, 2010

3)    Get denied and fail to appeal.

I high percentage of people who have filed for SSI/Social Security disability benefits get denied at the initial application level as well as the reconsideration level.  Unfortunately, often times people get denied and they do not pursue the case any further.  That is a huge mistake because a denial at one of those two stages certainly does not mean that you cannot get disability benefits.  Most of our success on disability claims is accomplished at the hearing level which comes after reconsideration.  Unfortunately many people who are legitimately disabled never get to the hearing level because they do not appeal a denial.

4)    Appeal a disability denial but do it more than 60 days after receiving the denial.

Many people who get denied disability benefits do not realize how important it is to remember that there is a 60 day deadline to file an appeal.  If you miss the deadline then you more than likely will have to apply again, which could very well cost you some back pay.  I often tell my clients that the most important thing on a denial decision is the date it was issued.  When you get denied be very mindful of the 60 day deadline and be careful not to miss it.

Medical Malpractice – The Never Ending Story

Friday, February 5th, 2010

Many of our clients often do not understand a legal claim for Medical Malpractice (Med. Mal.).  Given the number of questions I constantly receive regarding this sometime elusive legal concept I decided to start a blog dedicated solely to this topic.  Please note the information provided is just information only and does not constitute legal advise

Medical malpractice, also known as medical negligence, generally occurs when a health care provider breaches the professional standards of care when providing treatment to a patient, causing the patient to suffer an injury.  Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include but are not limited to:

1.  Failure to diagnose or misdiagnosis of a medical condition or an injury;

2.  Failure to provide “medically appropriate” treatment for a medical condition; or

3.  An unreasonable delay in treating a medical condition that the treating physician knows has been diagnosed.

Medical Malpractice lawsuits can be brought against any healthcare provider including doctors, hospitals, nurses, and nursing homes who have negligently cared for a patient.  This first entry just “scratches the surface” and there is much more to talk about.  Please do not hesitate to e-mail or call if you have any questions about medical malpractice lawsuits.

Common mistakes people make when applying for SSI/Social Security Disability benefits? (Part 1)

Monday, February 1st, 2010

1)    Delay filing for benefits

It is very important that you apply for benefits as soon as your medical condition worsens to the point where you can no longer work.  For SSI benefits, if you are found disabled, your benefits can only go back to the date of your application.  For example, if you became disabled and quit working in January 2009, but did not file an SSI application until July 2009, your disability benefits can start no earlier than July 2009.  If you had filed an application immediately upon becoming disabled, you would have received an addition 6 months of back pay which could be a large amount of money.

For Social Security disability, your back pay, can go back 1 year from the date of the application.  As a result you have more time to submit an SSD application before it starts having an impact on your benefits.  However people still often make the mistake of waiting to file for SSD benefits for a year or two after they become disabled.  Please do not make this mistake because it can significantly reduce the amount of your back pay.

2)    Assume that you will quickly get on SSI/Social Security disability benefits

For many people the process of getting approved for SSI/Social Security disability benefits is a long process.  It is not uncommon for it to take a year and a half to two years to get on disability benefits.  As you start the process know that it will likely require a lot of patience and take a long time to get resolved.