An appellate court released an opinion in a medical malpractice claim brought by the estate of an individual who died while in the care of a hospital. In the case, a man was admitted into the hospital after complaining of severe right side pain. He was given narcotic pain medication but had a bad reaction to it, and it was discontinued. About two days later, another doctor at the hospital prescribed a different pain medication. When the nurses arrived in the morning, the man was found lying across his bed and was unresponsive.

Alarm ClockUnfortunately, attempts to rescue him were unsuccessful, and he passed away. The hospital contacted the family, and the man’s wife claimed that the hospital improperly obtained her consent to perform a private autopsy. The family brought a medical malpractice lawsuit against the hospital and claimed that the hospital failed to notify the medical examiner. However, this claim was brought three years after the death. A jury did not find against the hospital on the medical malpractice claim but did find that the hospital improperly obtained consent.

The lower courts all concluded that the autopsy claims were not health care claims, and thus the statute of limitations did not bar that lawsuit, but the medical malpractice claim was past the statute of limitations.

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Earlier this month, a Pennsylvania appeals court heard and affirmed a $3 million verdict against a subsidiary of Johnson and Johnson arising from a product liability case. The lawsuit stemmed from an incident in which a child suffered severe birth injuries after the mother was prescribed and took a migraine medicine during her pregnancy.

White PillsAccording to the court’s decision, the woman was prescribed the medicine while she was pregnant, and her daughter was subsequently born with a bilateral cleft palate and lip. The mother and father claimed that the drug manufacturer was liable for the injuries because they failed to warn the mother’s doctor of the risks associated with taking the medicine, specifically the risk of birth injuries when the medicine is taken early during pregnancy.

At the trial level, the jury found that the company was liable for the injuries. The jury awarded $1.5 million in non-economic damages and $1.5 million to the parents in potential health care costs. The company then went on to appeal the $3 million dollar verdict, claiming that they were unable to change the pregnancy warning level without the permission of the FDA. However, the three judges on the appeals panel disagreed and found that the drug manufacturer still had the duty to warn doctors of the potential risks. The judges held that the manufacturer’s argument did not adequately differentiate between the potential risk that their label implied and the scientifically known risk. The judges also found that the evidence presented showed that the manufacturer knew of the potential risk of specific birth defects, including those that affected the child. The court also found that the manufacturer should have made the risks known to prescribing doctors.

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New Mexico is a scenic state that has a lot to offer to both tourists and residents. Many people travel the New Mexico highways to explore all that the state has to offer. However, as a result, the roads are often filled with out-of-state drivers, inexperienced drivers, and fatigued drivers. All of those combined with potential dangerous conditions can lead to deadly situations.

HighwayThroughout the United States, the number of accidents and accident-related deaths varies greatly. The Insurance Institute for Highway Safety releases data that tracks state population compared to vehicle miles traveled, fatal crashes, and deaths per 100 million vehicle miles traveled. New Mexico is one of the states where these numbers are extremely high. As of 2014, New Mexico’s population was 2,085,572, and the vehicle miles traveled were 25,347,000. The number of fatal crashes was 337, and there were 383 deaths. These numbers translate to about 18.4 deaths per 100,000 people and 1.51 deaths per million vehicle miles traveled. These numbers are startling and among the highest in the country.

Furthermore, the Institute tracks deaths by crash type and state. The most recent statistics from 2014 reveal that New Mexico had about 242 single-vehicle crashes and 141 multiple-vehicle crashes. Most interestingly, New Mexico was behind only one other state, Oklahoma, in accidents that involved large trucks. It is important that individuals understand and consider these statistics when driving on New Mexico roadways.

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Any time someone is injured in a New Mexico accident, they are entitled to file a negligence claim against any and all parties they feel were responsible for their injuries. However, before an injured party is allowed to recover for their injuries, that party must prove certain elements. One of the most often contested elements in New Mexico auto accident cases is establishing that the defendant breached the duty of care he owed to the plaintiff.

Liquor BottlesEstablishing that a defendant owed the plaintiff a duty of care is usually simple in auto accident cases, since all motorists owe those with whom they share the road a duty to safely operate their motor vehicle. However, proving that the defendant breached that duty can be more complicated, and this is where the bulk of litigation often occurs in car and truck accident cases.

In order to prove that a defendant breached a duty, the plaintiff must be able to show that the defendant’s negligent acts could foreseeably result in the harm ultimately suffered by the plaintiff. In other words, if a defendant’s actions could not foreseeably result in the harm suffered by the plaintiff, the law may not be willing to say that he breached a duty to the plaintiff.

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Earlier this May, the Supreme Court of the State of Washington released its opinion in a tort claim originating from a tragic death back in 2009. According to the court’s opinion, an elderly woman died from morphine intoxication while she was residing at an adult family home. After the woman’s death, the family’s representative brought a lawsuit against several individuals who were involved in the care of the elderly woman, including the nursing services company that employed the nurses.

Old Man's HandSpecifically, the family claimed that two nurses saw the signs of abuse but did not report them to the Department of Social and Health Services. At trial, the defendants moved to dismiss the case, claiming that the state statute did not automatically create a cause of action against those who  fail to report abuse, even if they are mandatory reporters. The trial court and the Court of Appeals both agreed. However, the plaintiffs appealed the suit to the Supreme Court.

The Supreme Court reviewed the state statute and held that the act does in fact create a private cause of action against those mandatory reporters who fail to report neglect or abuse. Furthermore, they found that there was a genuine dispute of a material fact, and therefore the lower court should not have granted summary judgment in favor of the defendants.

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The United States Court of Appeals for the Seventh Circuit released its opinion in a personal injury case earlier this month. The case arose from a 2011 accident in which a woman drove through a stop-sign and caused a multi-vehicle accident. The plaintiff in the case was a motorist who was driving with two passengers.

Wrecked CarThe at-fault driver had an insurance policy that had liability limits of $250,000 per person and $500,000 per accident. The plaintiffs settled the case and opted to collect under the per-accident limit, so the driver received $250,000, and the two passengers split the remaining $250,000. The plaintiffs then argued that the amounts they received were inadequate to make them whole and as a result put a claim in through the plaintiff-driver’s insurance company through their “underinsured” motorist clause.

The insurance company denied the claim and held that this clause did not apply because their policy states that the coverage is limited to $500,000, and the plaintiffs already received that amount through the original claim. The plaintiffs argued that the insurance company’s policy does not make clear that the underinsured motorist policy is limited to $500,000 per accident, and the limit should be considered a per-person limit.

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When individuals are injured or killed in an accident that was the fault of another party or parties, there are many hurdles that they or their families must overcome before they can be compensated for the injuries they endured. When there is only one culpable party involved, the case may be more straightforward, but often there are multiple parties that may be held liable. This may be because they were directly or proximately responsible.

Carnival SceneNew Mexico law follows the theory of contribution in these joint and several liability actions. These at-fault parties have the right to contribution, which allows them to only be responsible to the victim for the part that they actually played in the accident. In these cases, the victim will only be entitled to damages relative to the amount of fault for which the specific tortfeasor was responsible. They will need to collect separately from each responsible party. Under New Mexico law, if the plaintiff is found to have partly caused their own injuries, they will not be barred from recovery, but instead their recovery will be lessened relative to their percentage of fault.

As is the norm across jurisdictions, there are some very specific exceptions to the rule discussed above. First, this does not apply to intentional tortfeasors, vicariously liable defendants, some product liability cases, and even some cases involving inherently dangerous activities. It is important that individuals involved in these types of cases contact an experienced and dedicated attorney to help them understand their rights.

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The Supreme Court of Hawaii recently released an opinion addressing a physician’s duty to disclose information to a patient. The opinion stemmed from a 2008 incident when the plaintiff suffered a lower back injury at work and sought treatment from his primary care doctor. The plaintiff was given conservative treatment, and when that did not work, he was referred to a specialist. The plaintiff then signed a consent form to an operation on his lumbar disc, and the surgery was performed.

Medical DoctorThe language on the consent form indicated that he was informed of the significant risks and that the doctor did not promise a result or cure. There were additional forms that did not provide a place for the patient’s signature. Following the surgery, the plaintiff began suffering more pain and discomfort. He then consulted with another doctor, who stated that the surgery “should have been at a different level” and that his subsequent additional pain was because of the surgery.

The plaintiff filed a complaint against the doctor, alleging medical negligence and failure to obtain informed consent. The defendants moved for summary judgment, claiming that the case should be decided in their favor because the plaintiff did not have medical expert testimony as to the materiality of the risk. The Supreme Court vacated the lower court’s judgment and found that the common law factors did not apply, the defendant was not entitled to judgment as a matter of law, and the lower court erred in their decision.

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With the prevalence of ride sharing and privately operated car services, discussions regarding the rights and liabilities of those injured by or as passengers in these vehicles have begun to make headlines. Although taxi cabs have been around for decades, the increased availability of private driving services has resulted in many legal questions. A recent national newspaper article reported on these concerns from the perspective of the drivers.

Taxi LaneGenerally, these private car services are app-based and driven by individuals not employed by any company. These drivers operate their own vehicles and are supposed to be insured. At this point, these drivers are not considered “commercial drivers,” and as a result their insurance policies do not address the complicated issues that may arise when they injure someone in a car accident.

In most cases, when a passenger is injured in a car accident, there are several ways they may try to recover damages for the injuries they suffered. For example, an accident victim may bring a negligence lawsuit in civil court, or they may try to collect from the driver’s insurance company or even their own insurance company. In New Mexico, if the parties have low coverage limits, the injured party may be able to collect enough by bringing claims against both their own and the other party’s insurance company.

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The Supreme Court in Wisconsin recently released an opinion in a negligence case brought by a plaintiff who was injured when she was waiting in line to ride on a hot air balloon. Apparently, the plaintiff had been waiting in line for about half an hour when one of the hot air balloons began to move toward the people waiting in line. Evidently, the balloon was untethered and struck the plaintiff, knocking her over.

hot-air-balloons-439331_960_720The plaintiff brought a negligence lawsuit against the balloon operator. Evidence concerning the operator’s lack of experience was submitted to court, and the balloon operator admitted that if he had known about the weather, the balloon would have been tethered. However, despite the evidence, the defendants moved for summary judgment and asked the court to dismiss the case.

The defendants argued that the company was protected by the state’s recreational immunity statute and that the plaintiff signed a waiver freeing the company from liability. The lower courts all agreed with the defendants. However, when the case reached the state’s supreme court, the decision was reversed. The court found that the company was not entitled to protection because they were an “occupier,” not an “owner” of the land. Furthermore, the court explained the statute didn’t apply because the hot air balloon should not be considered “property” under the statute. Finally, the court found that the waiver of liability signed by the plaintiff was invalid because it went against public policy.

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