New Mexico Attorney Blog
Posts Tagged ‘Attorney’
Wednesday, May 12th, 2010
There are a variety of situations that can lead to a medical malpractice claim. Medical Malpractice claims can range from the obvious (a doctor leaving a sponge in a patient’s stomach during an operation) to the not so obvious (a doctor failing to tell a patient that a prescribed drug might cause heart failure). Most medical malpractice claims can be categorized into one of the following general categories: (1) Failure to Diagnose; (2) Improper Treatment; and (3) Failure to Disclose Known Risks.
Cases fall into the first category when a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved. Cases fall into the second category when a doctor treats the patient in a way that no other competent doctor would have treated the patient. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently. Finally, cases fall into the third category when doctors breach their duty to warn patients of known risks of a procedure or course of treatment – this is also known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure.
Call us today to set up a free consultation regarding a potential medical malpractice claim.
Monday, May 3rd, 2010
First, check to see if you or anyone else is injured. If, so, you should try to render aid, if you can safely do so. Even if you think someone else is at fault, it is a good idea to try to prevent further injury.
Second, try to prevent causing any additional accidents. If you are in the middle of traffic, safely move off of the roadway. If your vehicle is in the middle of traffic, place flares or warning triangles on the road. Allow police and other emergency personnel investigate the scene with the vehicles in place and move them safely out of the way.
Third, call the police. Tell them immediately if you or anyone else is injured. Answer their questions honestly, but do not admit fault. If you are confused or in a daze, tell the police you need medical treatment and aren’t able to accurately discuss the events at the moment. Remember, anything you say can be used against you in a court proceeding. Even if you think the damage wasn’t too bad, or you weren’t injured, having a police report can help you pursue or defend against a claim that arises later.
Fourth, get all the information you can from the other drivers. Make sure to get their names, addresses, driver’s license numbers, make and model of their vehicles, license plate numbers, and insurance company and policy numbers. Get contact information for any witnesses, also.
Fifth, take pictures of the scene and any vehicles that may have been involved. Take your valuable belongings out of the vehicle if it is safe to do so. If you are too injured, take pictures or remove your valuables, do so as soon as you are able.
Sixth, if you are injured, get medical treatment. Don’t decline treatment to save money or to be strong. If you are not hurt, do not accept treatment you don’t need. Remember, though, after an accident you may not feel the pain of the injury until hours or days later. Seek medical help as soon as you feel the injury.
Seventh, contact a good attorney as soon as you are able to after your initial treatment. The sooner you contact an attorney, the sooner he will be able to gather important evidence and prevent your insurance company from taking advantage of you. Do not give any statements to your insurance company until you have met with an attorney. A good attorney can help you obtain higher settlements and prevent you from making expensive mistakes.
Eighth, you need to need to report the accident to your insurance carrier, but keep in mind you need the protection of an attorney before you make any statements regarding the accident.
Ninth, do not agree to settle with the other person, even if you were the one at fault. This rarely works to your advantage. Never agree not to call the police. Police reports can determine the fault for an accident can be greatly advantageous. Not calling the police only gives the other party an opportunity to change his story once the police will no longer investigate the accident.
Tenth, don’t pay a traffic citation without fighting in court if you believe you weren’t at fault, and don’t agree to accept a payment for your vehicle repairs without knowing the actual cost of the repairs.
If you’ve had a motorcycle or automobile accident in New Mexico, please contact our law firm. We have the experience you need to ensure you are represented and get the compensation you deserve.
Monday, April 5th, 2010
Riding motorcycles is a popular and enjoyable pastime for many New Mexicans, but can also be one of the most dangerous. You must have proper training, skills, and knowledge to be able to safely ride a motorcycle. Avoidance of accidents is even more important when riding a motorcycle than driving a car because a motorcycle does not provide you any protection from injuries, like a car can. Here are some tips to help you avoid becoming involved in a life-altering accident, or to minimize injuries if you do become involved in an accident.
- Know your motorcycle’s capabilities and ensure that you can comfortable control it.
- Never ride in a car’s blind spot.
- Always wear the proper protective clothing and gear when you ride. Especially be sure to wear a helmet any time you get on a motorcycle.
- Use headlights and signals both day and night
- Never drive under the influence of alcohol or drugs
- Treat other motorists with courtesy and respect
- Remember you are difficult to see. Drive defensively.
Most motorcycle accidents are caused by someone’s negligence that can change your life. Some common causes of motorcycle accidents include driver negligence, hazardous weather conditions and dangerous road hazards. The leading cause of motorcycle accidents is the failure of other drivers to see the motorcyclist. You must assume that the other motorists on the road cannot see you, and ride accordingly
If you or a loved has been involved in a motorcycle accident, please contact us to discuss your right to recover for your injuries and damage to your motorcycle. Our team of lawyers is ready to help you and your family.
Tuesday, March 9th, 2010
The short answer is no, except in very rare circumstances.
The New Mexico Workers’ Compensation Act is a no fault system, designed to benefit both employees and employers. The primary benefit to this no fault system for the injured worker is that her or she does not have to prove negligence to receive compensation, as would be required in a typical personal injury claim. Generally, a worker injured in the course and scope of employment is entitled to benefits, regardless of whether the employer or the worker, or even another employee was negligent. Simply put, for the most part negligence is irrelevant in worker’s compensation.
The no fault system further provides a benefit to the worker because he or she does not have to prove up negligence. This allows for a more timely award of benefits to the worker.
The New Mexico Workers’ Compensation Act provides a very important benefit to the employer as well—that is, the employer can not be sued outside of workers’ compensation. In other words, the law does not require the worker to prove negligence, but as a tradeoff, it prohibits the workers from suing the employer outside of worker’s compensation.
Thus, for 99% of workers that means the worker cannot sue his or her employer, not even if your employer is negligent, or even grossly negligent.
I did mention there are rare situations in which a worker can sue an employer. This is known as a “Delgado Claim” named after the New Mexico case which first provided this right to workers. Without getting into the specifics of the case, and a complex analysis, I can simplify it with a simple example of what is required.
Assume there is a fire at work, and your employer demands that you rush into the burning fire or you will be fired. You refuse citing the obvious risks, and your employer again demands that you rush into the burning fire risking your life. You reluctantly agree, and are injured in doing so.
Okay, this is a bit of an exaggeration, but not much! While not exactly the standard for bringing a Delgado claim, this provides a helpful example as to the extremely high burden an injured worker must overcome to sue his or her employer. Another way of looking at it is that it must almost be intentional.
If you believe you have a situation that may rise to this level, please contact me and I will be happy to discuss your situation in more detail.
But as a general rule, assume you can’t sue your employer.
A couple quick side notes that must be mentioned while we are on this topic…you can potentially bring a claim outside of worker’s compensation if someone other than your employer or fellow employee caused your injury. The most common examples of this are negligent third party contractors or negligent drivers injuring you in a car accident while you are in the course and scope of employment. In this situation, you can potentially bring a worker’s compensation claim and a personal injury claim.
This is obviously meant to be a very quick overview of this area of the law, and is not intended to be a complete explanation. I will be happy to discuss the facts of your case if you need further information.
Friday, January 29th, 2010
In automobile accidents, it is often the case that a family member was at fault. This scenario is especially true when there are multiple occupants in a single-vehicle accident. Take a typical case, for example. Husband and wife go to a party. Husband is driving. He has maybe had a few too many drinks, and runs the car off the road, severely injuring wife. Wife should be entitled to recover for her injuries, right? The only problem is that if wife sues husband, she isn’t going to get any money that isn’t already hers, is she? So why should wife bother with suing husband, since in most cases, husband’s assets are commingled with wife’s assets?
In a case like the one just mentioned, attempting to make a money recovery from a family member or a loved one shouldn’t necessarily be dismissed off hand. Many times, when a family member injures another family member, the injured person feels as if she is unable to recover for her injuries. This is simply not the case. Often, the injured family member can recover from the insurance owned by the responsible family member. Some of these cases may require a lawsuit to enable recovery. So, just because you were injured by a family member doesn’t mean you can’t recover money for your injuries.
If you have been injured in an automobile accident, whether by a family member or not, you should act quickly, as you must file any legal action within a certain period of time to protect your claim. You may need to contact an attorney quickly, as your time may be running out. Our team of attorneys routinely handles automobile accident cases and is ready to serve you.
Monday, January 18th, 2010
So, you show up for work as you have thousands of times before, and out of nowhere it happens…you get injured. No big deal, right? In some situations, it may not be a big deal, but for many, suffering a work-related injury can be a life-changing experience, bringing about financial and employment uncertainty.
Many workers in New Mexico often make the mistake of believing that a work-related injury is essentially no different than suffering any other injury—for instance in a car accident. While the injury may be the same, the legal ramifications differ significantly.
For example, work-related injuries and the benefits/responsibilities associated with that injury are heavily governed by statute (New Mexico Workers’ Compensation Act). This can prove to be a double-edged sword for an injured worker. On one hand it provides essential and valuable benefits to the worker, but on the other, places significant responsibilities on the worker that must be strictly followed in order to ensure proper recovery of benefits. Failure to comply with these guidelines can bar an injured worker’s entire claim.
While the New Mexico Workers’ Compensation Act can be complex and daunting, there are some pretty basic requirements, every injured worker should know. If you are injured at work, follow these simple tips, and in most cases (I pause and emphasize most!) your worker’s compensation claim will run smoothly ensuring you receive the maximum benefits you are entitled to under the law.
So lets jump in…
- Emergency Care. If your injury requires emergency care, always get the necessary treatment first and foremost. You do not have to receive authorization from your employer prior to receiving emergency care.
- Notice. NOTICE, NOTICE, NOTICE. In case I wasn’t clear, notice is critical. The law requires you to notify your employer in writing within 15 days of the time you know or should have known you suffered a work-related injury. Typically, this is accomplished by the worker completing a Notice of Accident (NOA) form (form 52-1-29 NMSA). This form should be posted at your workplace. If not, ask your employer for one, or contact your local WCA office. The NOA form is a report by the worker notifying your employer that an accident has occurred at work, and states the date, and a general description of the accident. If a NOA form is not available, at the very least, talk to your supervisor and give notice of the accident orally, making clear that you were injured at work, and the circumstances surrounding the accident. This is the biggest mistake injured workers make– failure to properly give notice.
- Selection of Health Care Provider (HCP). Once you have given notice, wait for you employer (or their workers’ compensation insurer) to instruct you as to which doctor they have authorized you to see. In some circumstances, your employer may allow you to choose your doctor. In either situation, that selected doctor will be considered an authorized health care provider. It is imperative that you do not seek medical attention from an unauthorized health care provider, as this will only create problems. Additionally, once the treating physician is selected, do not change unless you are authorized to do so by your employer/insurer.
- Doctor’s Report. Your authorized HCP should give you instructions concerning your ability to return to work. In some situations, you may require days or even weeks off. In others, you might get a full release to return to work, or even a release to return but with restrictions. Regardless, you must provide your employer with a report indicating the doctor’s recommendations on return to work.
- Return to Work. It is critical that you follow your treating physicians recommendations, including complying with any restrictions. However, as a goal, you should always seek to return to work as soon as possible, as you will always earn more income working, than you will earn in worker’s compensation benefits.
- Good Communication. If your injury requires time off from work, it is always a good idea to stay in good communication with your employer. Make sure your employer has proper documentation from your physician if you are required to take time off. Do not just not show up and assume they know you are hurt! Additionally, check in occasionally and make sure your employer is updated as to your condition and plans to return to work. Often times, workers fail to communicate effectively with their employers concerning their condition, which can lead to problems including loss of employment.
Obviously, this list is greatly simplified, and there can always be other factors that must be considered. But for the most part, an injured worker who follows these guidelines will ensure his/her claim will not be denied due to failure to comply with the New Mexico Workers’ Compensation Act.