Colorado Medical Malpractice Laws

The trust that a patient puts in their chosen health care provider is of the greatest importance. Patients allow their health care providers to see their medical history, learn about their current and ongoing physical ailments, prescribe medications and perform procedures that often require their life to be put in the hands of their physician. This trust is given due to the standard of care that every health care provider agrees to meet and the level of trust is severed when the standard of care is not met. However, after an injury is caused by a health care provider, it can be difficult to know what steps need to be taken in order to seek a legal remedy.

If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in Colorado has created finite period of time in which you are permitted to bring a claim.

In addition, the law in Colorado has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Colorado; however, the best course of action to take if you are considering doing so it so consult with an experienced medical malpractice attorney licensed in Colorado.

Suing for Medical Malpractice in Colorado

Colorado enacted the Colorado Health Care Availability Act (“HCAA”) in 1988 which helps to govern health care litigation in the state of Colorado. The Act aims to assure the continued availability of adequate health care services to the people of Colorado by containing the significantly increasing costs of malpractice insurance for medical care institutions and licensed medical care professionals. [1] As part of this initiative, the HCAA governs various aspects of medical malpractice litigation, like:

• Procedures and Evidence in medical malpractice cases
• Damage caps
• Agency and Corporate relationships to physicians

Timing is everything when filing a medical malpractice claim in Colorado as the law places a statute of limitations on how long you may wait to bring your claim. Once a claim is brought against the appropriate defendants, the law in Colorado allows named defendants to claim modified contributory negligence as a defense against a medical malpractice claim. Modified contributory negligence requires the defendant to prove that the plaintiff failed to exercise reasonable care and that failure led to your injury.

How long do I have to file a medical malpractice case in Colorado?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are within the proper timeframe. The law in Colorado mandates that an action for personal injury must be filed within two years from the date that the injury occurred. [2] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the two-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule known as the “discovery rule.”

It is not uncommon for an injury that occurred due to the negligence of a healthcare provider to be discovered almost immediately after occurring. In those situations, it is best to consult with an attorney and file a claim as soon as possible. However, situations do exist where the injury may not be discovered by the injured party for months, even years, after the act that caused the injury occurred. In order to prevent punishing the injured party for not discovering their injury, the lawmakers in Colorado created the discovery rule. The discovery rule freezes the two-year time limit and only begins to run once you either discover, or should have discovered through reasonable diligence, the injury that was caused by the medical malpractice. However, the time period to discover your injury is capped at three (3) years unless; the malpractice was knowingly concealed by the defendant, 2) the malpractice consisted of leaving a foreign object in your body, or your injury could not have been known or discovered by way of reasonable diligence. [3]

Another exception to the statute of limitations exists if the injured party is a minor. If the person who sustained an injury due to medical malpractice was six years old or younger at the time of the medical malpractice, they may file a lawsuit at any time before their eighth birthday.

If the injured person was eight years or older at the time the medical malpractice occurred, as long as a lawyer is hired prior to the child turning 18 years old, they will be permitted to bring a medical malpractice lawsuit within two year from the time the lawyer was assigned to the case. [4]

In Colorado Medical Malpractice Cases, Who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not a wildly inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In Colorado, you may bring a medical malpractice claim against any health care provider that you allege was negligent and feel that their negligence caused your injury. When it comes to medical malpractice, a health care provider may be deemed to have been negligent when they performed an act that a reasonable professional would not have done, or the failed to do an act that a reasonable professional would have done, under the same or similar circumstances. The focus is not on the healthcare providers’ character or intent, but on whether professional standards of conduct were met.

The law in Colorado considers a health care provider to be anyone licensed to perform medical services on patients such as:

• Physicians
• Nurses
• chiropractors, and
• any other entity or individual that is in a position to treat a patient

What if I am partially to blame? Can I Still Recover Money for Colorado Medical Malpractice?

Colorado, along with 32 other states recognizes the doctrine of modified comparative fault. [5] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Colorado is one of 12 states (Arkansas, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you bleed excessively during a procedure performed by your doctor and the loss of blood caused a significant injury. A court finds that your excessive bleeding was caused by a combination of a an incorrect incision performed by the doctor and a failure on your part to properly disclose all of the medication you had taken prior to the procedure. The court ultimately finds that the doctor should have performed a different incision during the procedure and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not properly disclosing your medications to your doctor prior to undergoing the procedure. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Colorado decided to adopt a modified system.

Are there medical malpractice recovery caps in Colorado?

If your medical malpractice claim was successful, it is likely that a court will award you a sum of money known as damages. The law in Colorado has established different types of damage awards that you may receive:

Economic Damages are awarded for the purpose of helping to put you back in the monetary position which existed before your injury occurred. For example, economic damages help to repay the money you lost as a result of your injury, such as medical expenses, wages lost due to an inability to work, physical therapy costs, loss of future earnings, etc.

Non-economic Damages are meant to compensate you for occurrences that are hard to properly quantify like; pain and suffering, loss of consortium, and the loss of enjoyment of life.

Punitive Damages are not meant to compensate you for your injury. Instead, Colorado awards punitive damages with the intention of punishing the defendant and attempting to deter future similar behavior.

The law in Colorado places a $1,000,000 overall cap on damages where no more than $300,000 may be attributed to non-economic damages. It is important to note that the $300,000 cap does not apply to economic damages like lost wages and medical expenses. In fact, a court may make an award in excess of $1,000,000 if the court finds that the present value of past and future lost earnings, medical costs and other health care costs would exceed the limitation. [6]

The law in Colorado limits an award of punitive damages to match the actual damages awarded by the jury. [7]

Expert witness reporting and testimony

An expert witness is very important to your medical malpractice case for two reasons. First, an expert witness will be able to provide testimony to the court which will go towards proving that there was a breach of the standard of care owed to you by a health care provider and that the breach was the proximate cause of your injury. Second, the law in Colorado requires the opinion of an expert witness to be given in order for your case to ever reach trial.

The law in Colorado requires you to file a document called a certificate of review within sixty days (60) of serving your complaint upon the defendant. The certificate of review is meant to act as a way of preventing the filing of frivolous lawsuits. Within the certificate, you must verify that you have consulted with an expert and that the expert reviewed the facts of your case and concluded that the filing of the claim has merit. Failing to file the certificate of review will result in the dismissal of your case. [8]

In Colorado, a witness is deemed to be an expert when they have specialized knowledge based on their education, training, skill or experience. [9] However, to be able to testify against a physician, an expert must be licensed and must be able to demonstrate by competent evidence that, as a result of training, education, knowledge, and experience in the evaluation, diagnosis, and treatment of your injury, they are substantially familiar with applicable standards of care and practice as they relate to the act or omission which is the subject of your claim. [10]

Are some parties immune from medical negligence cases?

The law in Colorado allows for a medical malpractice lawsuit to be filed against a physician, nurse, chiropractor or any other healthcare provider whose negligence caused your injury. However, only physicians can practice medicine and Colorado-based hospitals cannot be held liable for the negligence of a physician. Therefore, in Colorado a professional service corporation is unable to be vicariously liable to you for the professional negligence of a physician who is a shareholder or employee of a professional service corporation like a hospital. [11]

However, this type of immunity does not apply to hospitals or other professional service corporations if the action that caused your injury was not committed by a physician, but instead by a nurse, therapist or other health care professional. This is because hospitals and other professional service corporations have a more traditional employment relationship with those health care providers than they do with physicians.

Settling medical malpractice cases in Colorado

The law in Colorado does not require mandatory arbitration or mediation as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation. However, the law does authorize health care providers to include arbitration clauses in their contracts as long as an agreement to arbitrate is not a condition of service as such a condition would constitute unfair insurance practice and would be subject to penalty. [12]

Arbitration can be advantageous in that it is less formal than trial litigation and is often more streamlined in terms of procedures and rules of evidence. The process usually involves three arbitrators; one selected by each side and a neutral arbitrator that is agreed to by both parties.

Litigating medical negligence cases in Colorado

A claim for medical malpractice in Colorado begins with the filing of a complaint. The complaint must specifically describe the malpractice that you claim to have occurred as well as ask the court for relief. After the complaint is served upon the named defendants, you must also file a certificate of review.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the claim going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court

In Colorado, a civil action first begins with the filing of the complaint with the clerk of the appropriate court. The complaint is the legal document used to begin a civil lawsuit. The complaint document should include:

• Your name
• The names of all of the defendants
• The address of all named defendants
• The specific facts giving rise to your claim
• A general request for relief from the court

Once the complaint is filed with the appropriate court, it must then be personally served upon the defendant(s) by the sheriff. [13] Once the defendant(s) is served, he has twenty-one (21) days to file an answer at the same court. [14]

After the complaint is properly filed with the appropriate court, you must file a certificate of review within sixty (60) days after service of the complaint on the defendant. The certificate of review requires that you have consulted with a medical expert and that the expert reviewed the facts of your case and concluded that your claim does not lack substantial justification. [15]

The certificate of review requirement serves to protect the court system from wasting its time on frivolous claims.

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a process that is designed to allow both sides to disclose information to each other in order to prevent unnecessary surprises at trial.

The discovery process can include:

• Interrogatories
• Depositions
• Production of documents
• Requests for admission

Essentially, discovery includes any item that can help bolster the legal argument of either side.

Interrogatories are written questions posed to the other side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

A deposition is a fact finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The actual deposition involves a question and answer session between opposing counsel and the aforementioned possible parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating.

Production of documents is a process where each side is permitted to request documents that may be used at trial.

Requests for admission are statements posed by one side to the other for the purpose of having the other side admit or deny.

Usually after the discovery process has been completed, the next stage of preparation begins which involves the taking of depositions. A deposition is witness’s sworn out-of-court testimony used to gather information as part of the discovery process and, in limited circumstances, may be used at trial.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. [16]

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, most cases do settle prior to going to trial.

In an effort to settle, it is not uncommon for both sides to seek a settlement conference. A settlement conference is a meeting where all of the involved parties get together in one location for the purposes of consulting with a neutral third party and exploring the prospect of settling the dispute.

During the settlement conference, each side will stay in private, separate, rooms. The neutral third party will then meet with each side and continue to go back-and-forth until either a settlement is reached or it is determined that the case will not settle.

If the parties are unable to come to a settlement agreement during mediation, trial is likely the next step in the litigation process. In situations where more than one defendant is named in the lawsuit, it is possible that a settlement may be reached with some, but not all of the defendants. The case would then proceed to trial as planned against the defendants that did not agree to a settlement.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Colorado: a judge or a jury. In Colorado, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. If an attorney does not feel a particular potential juror will be fair, the attorney can ask the judge not to allow that person to sit on the jury. Once each side finishes announcing the parties they wish to have removed, the six (6) member jury is impaneled. In some situations, both sides may agree to a jury consisting of less than six (6) members, but never fewer than three (3).

In Colorado, a person is considered to be qualified to be a juror if they are:

• A citizen of the United States
• Are at least 18 years old
• Able to read, write and speak English
• Reside in Colorado

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court. The Colorado Court of Appeals reviews the final orders and judgments made by Colorado District Courts and has authority to reverse or modify the decisions made.

An appeal is usually based upon the notion that the lower court made a clear error in resolving the facts of the case, abused its discretion in making the decision or misinterpreted or failed to follow the applicable law.

If a party wishes to appeal a decision rendered by a lower court, the appeal must be filed within forty-five (45) days of the order. [17]

How to find the best Colorado Medical Malpractice Lawyer for your case

Medical malpractice litigation is complicated, messy and sometimes confrontational. If you or a loved one has had the unfortunate experience of being injured as a result of the negligence of a health care provider, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring competent, diligent and experienced legal representation can take your mind off of the legalese so that you can focus on healing.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. It is not fair that you not only have to physically suffer for the negligence of another let alone be left with out-of-pocket expenses that you would not otherwise have incurred had the negligence not taken place. A strong legal representative can help obtain monetary relief from the court that will help compensate you for your injuries.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table. Some attorneys and firms may be stronger in some areas than others. Determine what qualities are important to you and go from there.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Ask the attorney or firm their rate and if they handle medical malpractice cases on an hourly or contingency basis. Many attorneys prefer contingency fees in personal injury cases which means that you are not obligate to pay an upfront or ongoing expense to the attorney or firm but you are obligated to pay a percentage of your ultimate recovery.

Some notable medical malpractice law decisions from Colorado

These cases represent awards to plaintiffs in medical malpractice cases in Colorado. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Walters v. Memorial Hospital, Mark James

The plaintiff, Jason Walters, became paralyzed from the chest down a few hours after being discharged from Memorial Hospital. Walters arrived at the hospital complaining of severe neck pain and numbness in arms and legs. Upon evaluation, a doctor diagnosed Walters’ condition as a neck strain and discharged him.

At trial, Walters was able to prove that he was actually suffering from a herniated disk that was compressing his spinal cord and caused a progressive neurologic injury.

Walters brought a medical malpractice lawsuit against both Memorial Health System and the emergency room physician, Dr. Mark James. Memorial Hospital ultimately settled prior to the start of trial.

A jury agreed that Walters was misdiagnosed and that the misdiagnosis was the proximate cause of his paralysis and awarded $15 million in damages.

However, Walters is only able to receive a small part of the $15 million since Colorado law mandates that only $300,000 of the $10 million non-economic portion of the award for pain, suffering, impairment and disfigurement is permitted to be recovered.

Jennifer Pressey, individually and on behalf of Naomi Pressey, a minor, v. Children’s Hospital Colorado

The injured party, Naomi Pressey, was admitted to the hospital to undergo surgery to repair a congenital heart defect. During the surgery, she went into cardiac arrest and doctors were unable to resuscitate her for 33 minutes. A brain injury resulted from the incident, causing cerebral palsy and other medical problems. As a result, Naomi will require a lifetime of medical care.

During the trial it was established that members of the hospital staff gave the Naomi the wrong dose of prostaglandin which caused the cardiac arrest and ultimately her injuries.

A jury held the hospital’s staff responsible and issued an award of $17.8 million. The verdict ordered the Children’s Hospital to pay $557,823 for medical and other health-care expenses from the time of the surgery and complications to present and another $1.9 million until Naomi’s 18th birthday. Additionally, the verdict requires the hospital to pay $12.2 million in medical and other health-care expenses and $2.1 million in lost-earnings capacity following Naomi’s 18th birthday.

The $952,000 in non-economic damages will reduced to $300,000 due to Colorado’s damage cap.

Footnotes

[1] C.R.S. § 13-64-402

[2] C.R.S. § 13-80-102(a)

[3] C.R.S. § 13-80-102.5(3)

[4] C.R.S. § 13-80-102.5(3)

[5] C.R.S. § 13-21-111

[6] C.R.S. § 13-64-101

[7] C.R.S. § 13-21-102

[8] C.R.S.§13-20-602

[9] CRE 702

[10] C.R.S. § 13-64-40

[11] C.R.S § 12-36-134(1)(f),

[12] C.R.S.§ 13-64-403

[13] Rule 4

[14] C.R.C.P. 12(a)(1)

[15] C.R.S.§ 13-20-602

[16] C.R.C.P. 34

[17] C.A.R. 4