Does Colorado limit what I can recover in a medical malpractice case?
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When injured or ill, we turn to medical providers for help. But what happens when the injury or illness is caused by the provider? Most victims are understandably left wondering whether they can recover anything, if what they can recover will be limited, and—if they ultimately decide to pursue compensation—what steps to take next.
One of the most frequently asked questions in Colorado medical malpractice cases is, “How much can I recover?” Most states, including Colorado, limit the amount victims can recover. This article will explore this important question, among others, in greater detail.
Ultimately, medical malpractice cases almost invariably require an experienced attorney. Our nationwide medical malpractice layers are here to help. If you or a loved one has been injured by a medical provider in Colorado, call Zinda Law Group at (800) 863-5312 for a 100% free consultation with an experienced medical malpractice lawyer.
Colorado medical malpractice FAQs
As with most personal injury cases, victims of medical malpractice often begin their case with more questions than answers. Some of the more common questions are answered below.
What Is a “Certificate of Review?”
Medical malpractice arises in numerous forms. Potential injuries are as diverse as the patients and their injuries/sicknesses, underlying conditions, and the methods used to diagnose and treat them. Therefore, medical malpractice must always be evaluated on a case-by-case basis. Some case-types include:
- misdiagnosis, delayed diagnosis, or failure to diagnose
- delayed treatment or failure or treat
- prescription drug errors
- birth injuries and complications
- surgical or procedural errors
- performing unnecessary surgery
- performing the wrong procedure
- using non-sterile surgical instruments
- leaving medical equipment inside the patient
- damaging organs, tissues, or nerves during surgery
- administering the wrong amount of anesthesia
Further, the governing statute in Colorado allows recovery for medical malpractice against healthcare professionals. The statute defines “healthcare professionals” broadly to include “any person licensed in this state or any other state to practice medicine, chiropractic, nursing, physical therapy, podiatry, dentistry, pharmacy, optometry, or other healing arts.”
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MEMBERS JOHN C. (JACK) ZINDA (2017-2020), JOE CAPUTO (2019-2020), BURGESS WILLIAMS (2019-2020), NEIL SOLOMON (2019-2020), COLE GUMM (2019-2020), CHRISTINA HAGEN (2020) & BRENDAN MCQUAID (2020)
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How Much Can I Recover for Medical Injuries in Colorado?
Like most states, Colorado has implemented a damage cap on how much plaintiffs can recover in medical malpractice cases. Firstly, this cap prevents juries from awarding “unfair” amounts to plaintiffs. Secondly, by controlling award amounts, medical malpractice insurance prices are maintained at “reasonable” rates. Of course, the cap comes with a degree of controversy, since “fairness” and “reasonableness” are subjective and irreducible to a fixed amount.
In Colorado, there are actually two medical malpractice recovery limits—one for economic damages and one for non-economic damages. Economic damages are those that can be reduced to a monetary value (for example, the cost of treatment associated with your injuries as a result of the malpractice); economic damages are capped at $1 million dollars. However, the governing statute also explains that, if the reviewing court determines that enforcing this cap would be “unfair,” it can award damages in excess of $1 million; this exception is only available for economic damages.
By contrast, non-economic damages are defined as those not reducible to a monetary value, “including pain and suffering, inconvenience, emotional stress, physical impairment or disfigurement, and impairment of the quality of life.” Non-economic damages are capped at $300,000 dollars. This cap is absolute.
Read more: C.R.S. 13-64-302, Colorado Health Care Availability Act
What Is Legally Required to Prove Medical Malpractice?
Negligence is the most common cause of action in personal injury cases, including medical malpractice cases. In any negligence case, the plaintiff is required to prove four elements. They are as follows:
1. The defendant owed a duty of care to the plaintiff.
2. The defendant breached that duty of care.
3. The plaintiff sustained injuries.
4. The defendant’s breach was the cause of the injury.
Duty is considered to be the threshold element—if there is no duty, there can be no medical negligence—and it is this first element that distinguishes medical malpractice cases from more generic personal injury cases. That is because the nature of the duty of care owed by medical practitioners to their patients is characterized by the “standard of care” commonly used in a given area of medicine. In other words, if a provider strays from the standard practice in their area of medicine and their patient is injured, the patient can then seek compensation by arguing that the doctor “breached their duty of care and thereby caused my injuries.”
Though the legal notions of a “duty of care” and “standard of care” are quite theoretical, they are also intuitive. That is, they reflect the commonsense principle that doctors need to meet a certain minimum standard when diagnosing and treating patients in order to keep the patient safe.
However, the application of these theoretically intuitive concepts to the facts of each case can become complicated very quickly; this is because the practice of medicine is a very diverse and complex field. In determining the standard of care in a surgery case, for example, a jury will try to determine what a reasonable surgeon of ordinary prudence would have done in the same circumstance. However, members of a jury are generally ill-equipped to answer this question because they are not surgeons; indeed, very few are well-equipped to answer this question because comparatively few are surgeons—or dentists, neurologists, psychologists, anesthesiologists, etc.
What is “Comparative Negligence”?
In addition to establishing medical negligence, plaintiffs in medical malpractice cases must also contend with Colorado’s “comparative negligence” law. Like simple negligence, this is also an intuitive concept. It simply means that, even if the medical provider is shown to have been negligent, the victim’s compensation is reduced proportionally according to their own degree of negligence.
For example, if your injuries were caused in part because you did not follow your doctor’s instructions, your damages may be reduced accordingly. Importantly, if you are more than 50% at fault, you recover nothing.
Read more: C.R.S. 12-21-111, Colorado Comparative Negligence Statute
What is the “Statute of Limitations”?
Statutes of limitation are yet another intuitive concept—but crucially important. A statute of limitations sets a deadline after which you may no longer bring your case. This deadline is somewhat unique in Colorado.
Firstly, the law provides a baseline limit of two years from the time the action “accrues,” defined as “the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” However, the law further provides that “in no event” can you bring a case after three years from the date of the negligence giving rise to the injury. There are additional exceptions to this (for example, when the provider deliberately concealed their negligence or in cases where a surgical instrument was left inside the patient’s body).
In any case, the time limits imposed by the statute of limitations is particularly sensitive in medical malpractice claims because the associated medical injuries are often difficult to identify and are not always immediately apparent. Still, the proverbial clock ticks and will bar your case if time elapses. Consult with a Colorado medical malpractice lawyer as soon as possible if you think you have been injured by a doctor, nurse, or other medical provider.
Read more: C.R.S. 13-80-102.5, Colorado Statute of Limitations for Medical and Healthcare Cases
What Is a “Certificate of Review?”
Certificates of review present yet another hurdle in medical malpractice cases. In an attempt to shield the medical industry from meritless or “frivolous” cases, plaintiffs in these cases are required to file a certificate of review within 60 days of filing their case.
The certificate must declare that the plaintiff’s attorney “has consulted a person who has expertise in the area of the alleged negligent conduct.” It must further declare that the expert has reviewed the known and relevant facts and that they concluded that the case “does not lack substantial justification.” Further, “as a result of training, education, knowledge, and experience in the evaluation, diagnosis, and treatment” of the relevant injury or illness, the expert consulted must have the necessary competence to speak on the injury in question.
Where can you find the experts required by this formality, and how will you know if they and you have met the requirements for filing a medical malpractice case? The experienced Colorado medical malpractice lawyers at Zinda Law Group can help you secure qualified experts and meet these requirements.
Read more: C.R.S. 12-20-602, Colorado Certificate of Review Statute
Do I Need a Colorado Medical Malpractice Lawyer?
Many victims of medical malpractice may find themselves wondering whether they need an attorney. Strictly speaking, no. Realistically speaking, yes. If you are wondering what do if you were hurt in treatment, you are highly encouraged to seek out the help of an attorney.
Given the complicated nature of medical malpractice cases described above, victims have little chance of recovering satisfactory compensation without the help of an experienced Colorado medical malpractice attorney. So, do you need a lawyer for a medical malpractice case? While you technically do not need a lawyer for most medical malpractice cases, you should strongly consider hiring a lawyer near you.
OUR colorado medical malpractice lawyers CAN HELP
Medical malpractice cases are not ordinary personal injury cases; the law governing these types of cases changes from state to state. But in almost all cases, victims face a number of unique legal barriers on their journey toward compensation. Further, because of the highly specialized nature of medical practice, these cases tend be factually complex.
If you are wondering what to do after a medical injury, our Colorado medical malpractice lawyers are here to help. We believe that no injury victim—regardless of the circumstance—should lack excellent legal representation in their case, so we are here to provide that representation. You pay nothing unless we win your case; that is our No Win, No Fee Guarantee.
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