In New Mexico medical malpractice cases, the plaintiff must be able to establish certain elements before the case will be permitted to proceed toward trial. If a plaintiff does not present sufficient evidence of medical negligence, the case will likely be dismissed in a pre-trial defense motion for summary judgment.

Rubber StampOne of the most important issues that a plaintiff must establish in a New Mexico personal injury lawsuit is that the care provided by the defendant fell below the generally accepted standard of care for similarly situated providers. This requirement reflects the understanding that the law does not expect doctors to be perfect or that the care they provide will always have the desired effects. However, at the same time, the law does allow victims of inadequate care to recover compensation for their injuries.

In New Mexico, in order to establish that a defendant medical provider’s care fell below the generally accepted level, an expert witness will almost always be needed. Unlike other states, New Mexico does not require plaintiffs to obtain an expert affidavit prior to filing their case. However, the plaintiff will almost certainly need an expert to establish what the generally accepted level of care is, and to help show the jury that the defendant’s conduct fell below that level. This is because New Mexico jurors are regular citizens, most of whom do not have the advanced medical or scientific knowledge necessary to resolve many of the issues raised in New Mexico medical malpractice cases.

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Earlier this month, an appellate court in California issued a written opinion in a personal injury case that may be of interest to New Mexico personal injury plaintiffs. The case illustrates how a defendant may attempt to argue that a plaintiff assumed the risk of injury, potentially defeating the plaintiff’s claim.

Sand DunesAssumption of Risk in New Mexico Personal Injury Cases

In some jurisdictions, a defendant may be able to completely preclude a plaintiff from recovering compensation for their injuries by successfully arguing that the plaintiff assumed the risk of harm in the situation. For example, if an athlete is injured while playing football, it is likely that a court would find that the athlete assumed the risk of injury if he were to file a personal injury lawsuit against the league because it is common knowledge that playing football can result in certain types of sports injuries.

In New Mexico, the assumption of the risk doctrine does not act to completely bar a plaintiff’s lawsuit but instead is factored into the comparative negligence analysis. Under comparative negligence, a plaintiff can recover for their injuries even if they are somewhat at fault for the accident that caused their injuries. However, the plaintiff’s total award amount will be reduced by their own percentage of fault. Therefore, in New Mexico, a jury will be able to consider whether a plaintiff assumed the risk of injury, but it will not preclude the plaintiff’s ability to recover for their injuries, unless the plaintiff is found to be completely at fault.

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Under New Mexico law, landowners have a duty to keep their property safe for the people whom they invite onto the property. In almost all situations, a landowner has at least some duty to protect visitors from harm. The level of the duty owed to the visitor depends largely on the reason why the visitor is on the landowner’s property. For example, trespassers are owed very little care, whereas business invitees are owed a much higher duty of care. A violation of this duty of care may lead to a New Mexico premises liability case.

Rope SwingAnother category of visitor is the “recreationalist,” who is on another party’s land to engage in some form of recreation, whether it be hunting, fishing, boating, swimming, or skiing. In these situations, the landowner may be protected under a recreational use statute. Recreational use statutes provide immunity to landowners who allow the public to use their property for recreational uses at no cost. When the statute applies, someone who is injured while on the landowner’s property may be prevented from holding the landowner responsible. A recent case illustrates how courts interpret recreational use statutes.

The Facts of the Case

The plaintiff’s son was playing on a lake with some friends. The children were taking turns swinging from a rope swing into the lake. As one child was swinging in the lake, the others would try to slap his feet before he hit the water. When the plaintiff’s son tried to swipe at his friend’s feet, the two children collided, and the plaintiff’s son suffered serious injuries as a result.

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Earlier this month, a Mississippi appellate court issued a written opinion in a premises liability lawsuit that should act as a warning to all New Mexico personal injury victims. The case involved a slip-and-fall case filed against three defendants, two of which the plaintiff excused through a pre-trial settlement agreement. However, the issue for the court to resolve was whether the plaintiff also unknowingly excused the third defendant as well. Ultimately, the court found that the third defendant was excused through the lawfully executed agreement between the plaintiff and one of the other parties.

SidewalkThe Facts of the Case

The plaintiff was walking on the sidewalk in front of an auto parts store when she tripped and fell after stepping in hole for a recessed utility box that was obscured due to fresh grass clippings that had covered the area. The plaintiff filed a premises liability lawsuit against the auto parts store, the city where the accident occurred, as well as the utility commission responsible for the placement and maintenance of the utility box.

During pre-trial negotiations, the plaintiff entered two separate settlement agreements with the auto parts store and the city. The agreement with the city contained a clause whereby the plaintiff agreed to discharge the case against the city and any “successors, agents, attorneys, insurers, subsidiaries, sister or parent companies, assigns, employees, representatives, stockholders, [etc.]”

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Being involved in a New Mexico car accident is a stressful experience, both physically and emotionally. In the immediate wake of the accident, the focus is on physically recovering from the injuries of the accident. Once the physical wounds heal, there is often the emotional stress that accompanies missing time at work, constantly visiting a physical therapist, and getting back behind the wheel of a car. This can take time.

Front-End DamageOnce both body and mind have recovered, there is the issue of the financial toll that the accident took on the victim. In some cases, insurance will help cover these costs. However, insurance companies will not approve all claims, and they may deny an accident victim’s claim for any number of reasons. In these cases, a New Mexico car crash attorney can assist accident victims with the preparation of their case. A recent case illustrates one insurance company’s efforts to evade responsibility.

The Facts of the Case

The plaintiff in the case was involved in an accident with another motorist. The plaintiff filed a personal injury lawsuit against the other driver, that driver’s insurance company, and the plaintiff’s own insurance company. The insurance companies were named as defendants because they were contractually obligated to cover the costs associated with the accident, pursuant to the drivers’ insurance policies.

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Anyone who has played a high-impact sport, such as football, understands that there is a risk of injury. However, the types of injuries most players would expect to encounter on the field are sprains, strains, or maybe a broken bone. However, according to research that has been conducted over the last several years, there is a high correlation between participation in high-impact sports and the degenerative brain disease chronic traumatic encephalopathy, or CTE. Victims of this condition in New Mexico may be able to bring a New Mexico brain injury case against someone whose negligence led to the condition.

Snap the BallCTE is a brain disorder that is characterized by severe cognitive disorders, including depression, anxiety, memory loss, impulsive behavior, and substance abuse, and it has been linked to an increased risk of suicide. The disease is believed to be caused by repetitive blows to the head and has recently been linked to participation in contact sports throughout all levels, including high school and college. However, the presence of CTE in former football players is the greatest, with one recent report concluding that CTE was found in 110 of 111 players surveyed.

Currently, CTE can only be diagnosed through a post-mortem autopsy, which makes it difficult to determine if a current or former player is suffering from CTE or from other mental health issues that may have another cause. Researchers have estimated that there will be a way to diagnose CTE in living patients within a decade.

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Auto insurance is supposed to help accident victims recover for their losses after being involved in a serious accident. However, in reality, insurance companies are for-profit companies that are solely motivated by profit. In too many New Mexico car accident cases, insurance companies refuse to offer fair settlements or contest accident victims’ claims altogether. A recent personal injury opinion illustrates how an insurance company may try to limit the amount of money it pays out following a serious car accident.

Signed ContractThe Facts of the Case

The plaintiffs lost two loved ones in a fatal car accident. At the time, the plaintiffs insured five cars through the insurance company and were provided two policy numbers. The limit on each policy was $250,000. Thus, the plaintiffs were seeking a total of $500,000. However, the insurance company claimed that the plaintiffs only had a single policy and paid out just $250,000. Following the accident and the insurance company’s failure to pay their requested amount, the plaintiffs filed a wrongful death lawsuit against the other driver as well as their own insurance company.

At trial, the insurance company sought dismissal of the case, taking the position that the plaintiffs had only one insurance policy and arguing that it had already paid what was due under the plaintiffs’ single policy. The trial court rejected the insurance company’s argument and denied the insurance company’s motion. The insurance company then appealed to a higher court.

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New Mexico car accidents have a number of causes, only some of which involve a negligent motorist. In some cases, a vehicle contains a defective part that compromises a driver’s ability to safely control the vehicle.

BridgeBack in May of last year, a former Navy Seal died when the vehicle he was driving, a Tesla Model S, crashed into a truck that failed to yield the right-of-way as it crossed the highway. After the collision, the National Transportation Safety Bureau (NTSB) conducted an official investigation into the fatal car accident. According to a recent news report, the results of the more than year-long investigation have just been released.

The recently released NTSB report faults both drivers in the accident, stating that the truck driver failed to yield when he crossed the highway and that the Tesla’s driver should not have relied so heavily on the auto-pilot technology. However, the report also mentioned that the auto-pilot technology in the Tesla Model S allowed drivers to over-rely on the system. The report recommends that future versions of auto-pilot technology do not allow drivers to use the technology on roads that are not appropriate for its use.

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Earlier this month, an appellate court in Connecticut issued a written opinion that will be of interest to victims of New Mexico slip-and-fall accidents because it illustrates the type of evidence necessary to establish liability in these types of cases. In this case, the plaintiff’s case was tried before a judge without a jury. After hearing the evidence on both sides, the judge entered a verdict in the plaintiff’s favor for approximately $108,000. The defendant appealed the lower court’s ruling to a higher court.

SidewalkThe Plaintiff Stubs Her Toe on a Hospital Sidewalk

The plaintiff was at the defendant hospital visiting a loved one when she stubbed her toe and fell while walking on the sidewalk immediately outside the hospital. In her deposition testimony, the plaintiff explained that she did not know what caused her to trip at the time, only that the front of her toe slammed into something on the ground and that she subsequently fell. As a result of her fall, the plaintiff sustained a broken toe and other injuries.

The plaintiff filed a premises liability lawsuit against the defendant hospital, claiming that the hospital was negligent in maintaining the walkway. The plaintiff presented two reports from witnesses, explaining that there was a small but visible divot in the pavement in the immediate area where she fell.

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After a judge or jury enters a verdict in a New Mexico personal injury case, that verdict is final unless one of the parties files an appeal to a higher court. If an appeal is filed, the appellate court may only consider alleged legal errors. This means that an appellate court will not revisit factual findings of the judge or jury below, but it may consider issues related to the admission of evidence or other legal rulings made during the course of the trial.

Diving BoardAppellate courts will also only consider arguments that were made during the trial. For example, if a party fails to object to a ruling with which they disagree, that party will be prevented from raising the issue on appeal in most cases. In a recent case, the plaintiff’s premises liability claim was dismissed on appeal because the arguments he made on appeal were not raised below.

The Facts of the Case

The plaintiff was an investor looking to purchase a rental home. He contacted the defendant real estate agent and arranged to see one of the agent’s listings. The agent met the plaintiff at the home and showed the plaintiff around. The home had a pool in the back yard that had been emptied prior to the property being put up for sale.

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