What is medical malpractice?
Medical malpractice" is no different than "medical negligence," "failure to meet the standard of care," "substandard care," and "unreasonable medical care." These terms are interchangeable, and simply mean carelessness by a health care provider which causes injury.
Just as a motorist is responsible for injuring someone by driving carelessly, a physician is responsible for injuring a patient by practicing medicine in a careless manner. A physician commits medical malpractice is negligent by failing to act in the same manner a reasonably careful physician in the same field of medicine would act under the same or similar circumstances. Physician negligence can occur in a variety of situations. Some examples are:
Hospitals, Nurses, Therapists and Other Health Care Providers:
Nurses, therapists and other health care providers, and the hospitals or clinics which employ them, are legally responsible for injuries caused by their failure to meet generally accepted standards in their particular field. The negligence of these health care professionals may arise in many situations. Some examples are:
How is medical malpractice proved in court?
To prove that a physician or other health care professional has been negligent, the patient (the plaintiff in a malpractice lawsuit) must introduce evidence showing the following: (1) the patient's condition which prompted the need for medical care, (2) the defendant's conduct and why it was negligent, (3) the appropriate care which the patient should have received, and (4) the injury caused to the patient by the negligent medical care.
Expert witnesses with knowledge of the standards of care in the defendant's field must be employed to review the case and render opinions as to whether the defendant was negligent and, if so, to what extent the negligence injured the patient. In a very few cases, experts are not needed to prove the defendant's negligence. For example, if a surgeon operates on the wrong part of the body, as has sometimes happened, an expert is usually not needed to prove the defendant's negligence.
How are damages determined?
Jurors in malpractice cases are instructed to award money damages to compensate the injured plaintiff for all of the harm caused by the defendant's negligence. Compensation is awarded for harm occurring prior to the trial and harm which is likely to occur after the trial. The plaintiff is not required to prove damages with 100% certainty, which may be impossible, particularly with respect to future harm. Rather, the plaintiff must show that damages sought are more probable than not. Some specific categories of damages which jurors consider include the following:
In order to explain these damages, the plaintiff's attorney usually calls a variety of witnesses to testify at the trial. For example, the patient, family members, friends or co-workers explain to the jury how the plaintiff has suffered because of the malpractice injury. These witnesses often compare the plaintiff's abilities and lifestyle before and after the injury to paint a picture of the impairment and suffering caused by the defendant's negligence. Expert medical witnesses, often the plaintiff's current treating doctors, will explain the plaintiff's physical impairments and limitations, and in some cases the reduction in the plaintiff's life expectancy. Furthermore, because malpractice injuries often require medical care long after the trial -- sometimes for the remainder of the plaintiff's life --experts are also needed to itemize and price future medical treatment, medications and medical equipment which the plaintiff will likely need.
In many cases, the plaintiff's largest financial loss is the inability to work or a reduced capacity to work. The plaintiff is entitled to compensation for all of the income, including employee benefits, lost because of the injury. A vocational rehabilitation specialist is often employed to render opinions about whether the plaintiff can still work, and whether his injuries prevent him from earning to his full capacity. In cases where the economic losses are very large and will be incurred over many years, an economist may testify about the present value of the plaintiff's financial losses.
In addition to the damages outlined above, the trial court may award interest on the amount of damages. See C.R.S. § 13-21-101.
Are there limits on damages?
Under Colorado law, there are limitations on damages recoverable in a medical malpractice case. The limitations are set forth in the Health Care Availability Act passed by the Colorado Legislature in 1988, and as amended. For cases which occurred prior to July 1, 2003, under C.R.S. § 13-64-302, noneconomic damages are limited to $250,000, not including physical impairment and disfigurement, and the total damages recoverable are limited to $1,000,000. For cases occurring after July 1, 2003, noneconomic damages, including damages for physical impairment and disfigurement, are limited to $300,000. However, when there are very substantial future health care costs and/or earnings losses, and if the court finds that applying the $1,000,000 limit would be unfair, damages in excess of $1,000,000 may be awarded for future economic losses. The jury is not advised of these limitations. Rather, after the verdict is rendered, the trial judge reduces the verdict in accordance with the limitations.
Special damage limitations apply to cases in which the negligent care is rendered by a Colorado public entity or any employee thereof. In these cases, damages are limited to $150,000 by the Colorado Governmental Immunity Act. C.R.S. § 24-10-114. Please see "Is special notice required for public facilities and employees?" for information about notice requirements which apply to claims against public entities and employees.
What is the statute of limitations?
Statutes of limitation specify the deadline by which lawsuits must be filed. The statute of limitations for medical malpractice cases is C.R.S. § 13-80-102.5, which requires that the case be commenced within two years of the date on which the action "accrues." Under C.R.S. § 13-80-108(1), a medical malpractice case accrues on the date that both the injury and its cause are known or should have been known by the exercise of reasonable diligence. C.R.S. § 13-80-102.5 also states that, with certain exceptions, the claim must be brought within three years of the negligent care, unless both the injury and its cause are unknown. However, the three-year limit may be unconstitutional under some circumstances.
The statute of limitations for the commencement of a lawsuit for wrongful death due to medical negligence is two years from the date of death. See C.R.S. § 13-80-108(2).
There are also special rules which may extend the statute of limitations for claims by minors or other persons deemed to be under a legally recognized disability, such as people with severe brain injuries. C.R.S. § 13-80-102.5(3) (d) (I) and (II); C.R.S. § 13-81-103.
Failure to file a case before the statute of limitations expires will likely bar the claim, regardless of the severity of the health care provider's negligence or the extent of the patient's injuries. Determining whether the statute of limitations has expired in a particular case requires a careful analysis by a qualified attorney.
Even when the statute of limitations deadline may not be near, if you suspect that you have been injured by medical negligence, you should consult with a qualified attorney as soon as possible so that evidence is not lost or destroyed.
Special notice requirements apply, in addition to the statute of limitations, for claims involving public facilities and employees. Please read the next section.
Is special notice required for public facilities and employees?
Yes, and failure to comply with these requirements may result in the loss of your claim.
Colorado public entities: For any claim against the State of Colorado, any of its political subdivisions (state agencies, counties, cities, special districts, etc.) or any employee thereof, a written notice of intent to sue must be given within 180 days after "discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury." See C.R.S. §24-10-109. However, there may be exceptions to the notice deadline, which applies to medical negligence cases, depending on the facts and circumstances of when any wrongful conduct causing the injury was or should have been known.
The notice-of-intent-to-sue should be drafted by an attorney, as failure to substantially comply with the technical requirements of the statute may invalidate the notice, and therefore the claim. Examples of Colorado public entities in the health field include, but are not limited to, Denver Health Medical Center and University of Colorado Hospital (not a complete list). Examples of persons who are deemed to be public employees include, but are not limited to, most doctors, nurses and other health care workers at public facilities and physicians, residents, medical students and other health care providers who may be in training at a private institution under a program affiliated with the state, i.e. Rose Medical Center, The Children’s Hospital.
Federal public entities and employees. When a patient is injured due to negligence by federal government health care providers, claims may exist under the Federal Tort Claims Act (FTCA). Written notice of an FTCA claim must be provided to the appropriate federal agency within two years. The claim must be made in a proper form and delivered to the proper agency to preserve the claim. The federal agency served with the notice then has six months to take action on the claim, after which time a lawsuit can be filed. A lawsuit may also be filed after the federal agency denies a claim.
How are medical malpractice attorneys compensated?
There are several types of attorney fee arrangements: (1) contingent fee; (2) hourly fee; and (3) fixed fee. Although the vast majority of medical malpractice cases are handled on a contingent fee basis, a client should be aware of other options.
Under a contingent fee agreement, the plaintiff's attorney is compensated by a specified percentage of the recovery which has been negotiated or won on the client's behalf. If no recovery is obtained, no fee is owed to the attorney. Percentage fees vary from state to state and law firm to law firm, and depend on the circumstances of each case. Our firm usually does not charge fees for preliminary evaluation of malpractice cases, and we routinely represent clients on a contingent fee basis when asked to do so.
In addition to attorney's fees, any contingent fee agreement should address payment of out-of-pocket expenses. Please read the information in the next section.
What are out-of-pocket expenses; and who pays them?
Medical malpractice cases are among the most expensive types of lawsuits. The out-of-pocket expenses necessary to properly investigate, prepare and try a medical malpractice case are substantial. Out-of-pocket expenses are incurred for items such as retrieval and copying of medical records, court filing fees, service of process fees, expert witness fees, travel and lodging, deposition expenses and trial exhibits. In a routine case, these expenses are in the tens of thousands of dollars. In complex cases, the expenses can exceed $100,000.
Most victims of medical malpractice cannot afford to pay these expenses as they are incurred. The fee agreement with your attorney should estimate the expenses likely to be incurred in your case, and the agreement should specify whether you will pay the expenses, or whether the attorney will advance them. The Colorado Rules of Professional Conduct permit attorneys to advance the expenses of a lawsuit. However, the client may remain liable for reimbursement of such expenses to the attorney. An attorney may waive reimbursement of some or all of the expenses of the litigation in circumstances and conditions which must be discussed with your attorney.
Is my case worth bringing?
Medical malpractice cases require substantial investments of time, money, and emotion. Only you and your lawyer can weigh the risks and benefits to decide whether a particular case is worth bringing. Questions which should be asked include:
Generally, these questions can be answered with the help of a qualified attorney after a careful analysis of your case. If you would like to discuss your case with one of the lawyers at our firm, please contact us by telephone, facsimile or e-mail.
If your case is one that we are able to investigate, we will meet with you in our office, unless your medical condition would make the trip inconvenient or impossible. In that event, we can meet at your home or elsewhere.
Physicians in Colorado are licensed by the Colorado Board of Medical Examiners (BME). The BME is also the agency that investigates complaints against physicians. The BME does not become involved in resolving damage claims or billing disputes. The BME may administratively discipline a physician by:
On the Internet, you can access the physician's licensing information and disciplinary history. The document specifying the discipline can be ordered from the BME by written request mailed to:
You can also file a complaint about a physician with the BME.
In addition, you can check with the American Board of Medical Specialties to find out whether a physician is board certified.
You can find ratings and report cards for various hospitals on the Internet. You may also obtain the accreditation status of a medical facility from the Joint Commission on Accreditation of Health Care Organizations.