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Southern New Mexico Law Blog



Surgeons-Anesthesiologists-Recovery Room Nurses

In medical parlance, a surgical instrument or foreign object, like a sponge, left in a patient’s body after closing the surgical wound is called “retained” as if the patients themselves purposely kept something from their surgery.  This type of usage of the language is one way that the medical profession and the insurance industry is able to shift the focus of medical and surgical errors away from those who commit medical malpractice.


The failure to recognize and treat surgical complications


Surgeons may fail to recognize that the operative site has become infected or that the procedure has caused substantial bleeding or that the put a hole or a cut where one doesn’t belong.   For instance, men over 40 routinely undergo colonoscopies, a procedure in which the colon is examined by a small camera for cancer or other abnormalities.  Sometimes this procedure results in a perforated colon, an error which needs to be surgically repaired as soon as possible to prevent infection and permanent damage.


Failure to operate


Sometimes surgery is the only effective treatment yet it is either not done or not done quickly enough, as when a nurse doesn’t tell a surgeon of an important change in a patient’s condition or when a surgeon can’t be found or fails to show up when called.


Unnecessary surgery


There are cases where surgery is performed without any reasonable justification.  Examples include: removal of a colon when no test has confirmed the need, or phalloplastys (penile enlargement procedures) which are medically useless surgeries in normal men.


If you have been affected by medical malpractice involving surgery errors, hospital mistakes or any other medical negligence, contact Chelpaty Law Office.







The many errors by pharmacists has fueled litigation across the country, as pharmacies may be held liable for mistakes that cause injuries or death to their patients.  Pharmacists face claims filed by patients demanding monetary damage awards in addition to actions brought by regulatory agencies that can revoke their professional licensure. 


Damages sought in a pharmacist malpractice suit may include compensation for related medical bills, disability, pain and suffering, emotional trauma and lost wages.  In some instances, though rarely, additional punitive damages may be awarded to deter future similar conduct and punish the defendant for their misconduct. 


Regardless if they are employed in a public hospital, clinic or drug store, a pharmacist has a duty of care that is owed to the patient.  In the event that a mistake is made that causes patient injury, an attorney will need to demonstrate that this duty of care has been breached.


The harsh reality is that pharmacy errors happen every day, negatively affecting the lives of patients and their loved one. 





Shocking reports involving medication errors continue to flood the media.  Just last year, a 92-year old woman was mistakenly given the wrong dosage of Oxycontin and ingested 30 times the normal amount.  What began as a routine treatment for a bacterial infection turned into a nightmare for her family, as she slipped into a coma and died several months later.  The victim’s family settled their claim with the pharmacist and physicians involved in her care, as well as parties failed to catch the fatal mistake.


Just over 86% of pharmacy mal practice lawsuits are filed based on “mechanical errors” such as dispensing the wrong medication, dosage form, directions, quantity, or strength of medicine.  With 1/3 of Americans on at least five different medications, and a growing number of baby boomers on meds, there is a startling increase for potential error.


The institute of Medicine warms that on average patients experience one medication errors a day.  The bulk of fatal errors occur in elderly patients, usually those over the age of 65.  Dosing errors with blood thinners and narcotics have been associated with a number of fatalities, deaths that could have been avoided had pharmacists carried out their duty of care.






A study published by the Pharmacy Manpower Project revealed that the workload of our nation’s pharmacists has increased significantly over the years, and many of those practitioners believe that patients would suffer as a result. 


Dealing with high volumes of daily prescriptions, fatigue, frequent interruptions and similar drug names, it’s easy to see how a growing workload could contribute to a spike in medication errors and allegations of pharmacist malpractice. 


Some of the most common types of pharmacy errors reported include:


**Incorrect dosing/dosing errors

**Incorrect prescription dispensed

**Drug is mislabeled

**Wrong instructions are given

**Prescription has been compounded incorrectly

**Pharmacy dispenses incorrect medication with a similar name to that prescribed

**Pharmacist misread the doctor’s handwriting, and dispenses the wrong drug

**Pharmacist judgment errors:  improper or no counseling, failure to detect drug interactions, and inadequate drug use review.






Recent statistics of pharmacy errors offer an ugly picture.  Pharmacies make 51 million medication errors every year – according to a Pharmacy Times study – the results of which are often catastrophic.  There’s been a tremendous increase in fatal pharmacy errors over the past 20 years, said David Phillips, a University of California professor who has studied the growing problem.  Since more patients are seeking health care outside hospitals, outpatient pharmacists are under extra burden, putting them at greater risk for potentially deadly mistakes.  Researchers estimate that of the millions of medication mistakes made each year by pharmacists, 1.5 million people are injured and more than 200,000 people die as a result. 


If you or someone you love has been harmed due to a pharmacy error or prescription drug mistake, we can review your claim free of charge to determine eligibility for legal action. 





Birth Injury Attorney Las Cruces NM

Birth Injury-Asphyxia


What is Asphyxia?


Asphyxia is a lack of oxygen.  Babies endure a difficult process during labor and delivery.  Many things must proceed correctly in order to have a successful delivery.  The successful delivery depends on the baby’s position, baby’s size, the forcefulness of the mother’s contractions, and the position of the umbilical cord.  Modern miracle science has fortunately advanced and doctors now have the technology to anticipate any potential risks.  Unfortunately, when the obstetricians and nurses make mistakes, the results for the baby and the family can be devastating.


What are the causes?


Causes of oxygen deprivation during labor and delivery can be placenta problems, contractions that are too close together, prolapsed umbilical cord, infection, preeclampsia and eclampsia, trauma, fetal distress, too much medication and shoulder dystocia.  Lack of oxygen during labor and delivery can cause developmental delays, cerebral palsy and wrongful death.





Because of education and careers, women are waiting longer to have children.  Generally speaking, women who have children after the age of 35 are considered to be of advanced maternal age.  Although, 20% of all women have their first child at 35 years of age or older.  There are 6 pregnancy related risk factors associated with advanced maternal age; still birth, maternal death, high blood pressure, genetic problems, miscarriage, and decreased fertility. 


Older women are statistically less fertile.  In this group, there are fewer pregnancies where birth control is not practiced.   Therefore, women in the group age 35 or older have a much more difficult time becoming pregnant and delivering children.  There are two major reasons why this increased difficulty is important for medical malpractice. 


First, women over the age of 35 are more likely to undergo fertility treatments to surmount the inability to become pregnant.  These fertility treatments and resulting pregnancies carry with them a much more increased risk that must be considered and monitored by doctors.  Although the choice of invitro fertilization has a 4% higher risk of genetic abnormalities, many problems are preventable.  Some of the negligent risks for fertility treatments are negligent destruction of viable embryos.


Failure to perform proper genetic testing or health/age background checks on donors and donated by a logical material, resulting in children born with genetic injuries, bleeding and death from egg retrieval procedures. 


Implanting the wrong embryo using the wrong sperm or using the wrong eggs.   Failing to test donated products for sexually transmitted diseases. 


Women are more susceptible to have miscarriages.  Miscarriage is a spontaneous abortion between 20 weeks.  These risks are often caused by increased chromosomal abnormalities. 





The death of a child during pregnancy or shortly after is a very traumatic event.  Often the parents want to know why did their child die.  In many cases, these deaths were preventable and were caused by physicians, nurses, or ineffective hospital policies.



Medical malpractice causing a baby’s wrongful death


The major risk to babies during pregnancy around the time of labor and delivery are:  oxygen deprivation.  Obstetricians and nursing staff must be trained to recognize the warning signs that a baby may have too little oxygen. 


Reduce blood flow


When the blood flow is eliminated or reduced for too long, the organs will shut down.  ‘


Trauma during delivery


Difficulty deliveries must be met with well-trained policies of obstetricians.  When a delivery is complicated by a baby’s distress, whether because of concerning fetal monitoring strips or shoulder dystocia, obstetricians must deliver the baby on an emergency basis.  Too much trauma to a baby using vacuum extractor or forceps can cause permanent injury or death. 


Uterine rupture


When the uterine wall is breached, both the mother and child’s life are at risks.  These ruptures can occur at any time near labor but are most common when the mother has prior uterine scars.  In the labor and delivery room, medical malpractice including excessive pushing on the stomach or improper use of Pitocin cause uterine rupture.  It is rare, occurring in about 1% of all deliveries.  When detected, the baby must be delivered immediately.






Approximately 1 in every 8 babies in the United States is born prematurely.  Pre-term is normally equivalent to prematurity.  When a baby is born before 37 weeks, it is classified as premature.  There are some healthcare providers who stress that the premature label should be used more sparingly and that a baby born at 36 weeks, for example, might not be considered premature. 


Premature birth statistics


There are about 500 premature births every year in the United States.  Over the past 36 years, the premature rate has increased to 36% which is partially due to the advance in medical technology which allows for emergency pre-term deliveries.


 Risk factors to consider for premature delivery


**Uterine infections

**Incomplete/ineffectual cervix

**Obesity or underweight mother

**Multiple births

**Previous premature deliveries

**Chronic health problems including diabetes and hyper-tension

**Smoking, alcohol, and drug usage


Birth injuries caused by prematurity


The following is a list of possible complications:



**Respiratory difficulties


**Digestive injuries

**Vision and hearing loss

**Cerebral palsy

**Developmental delays





Listen to what sounds you hear at a nursing home.


Residents yelling, screaming for assistance or moaning, can be signs of poor treatment.  It could be a sign of some mental disorder.  Learn how staff members address the residents. 


The staff should address the residents by their names.  This is a resident’s worth and the feeling of being respected.


Beware of understaffing


If the CNAs and staff work overtime or double shifts, this could be a sign of understaffing which can adversely affect the resident’s care.  If the staff is overworked, more than likely they will be overstressed.  If the family believes that the resident is being neglected because of poor staffing ratios, they should file a complaint with the state agency that regulates the nursing home. 


If the residents are outside the rooms, or rather outside doing activities, this is a very good sign because it shows that the residents needs are being addressed. 


How does the staff treat each other?


The staff is more than likely going to be rude to the residents if the staff is rude to each other.  Furthermore, staff should spend its time charting at the end of each shift. 





Tim Chelpaty Law Office

121 Wyatt Dr. Suite #2

Las Cruces, NM 88005


Office Hours:
Monday - Friday
9am to 5pm


Las Cruces

Silver City





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