Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Colorado the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages to $300,000, and limits total damages to $1 million, without regard for the extent of the malpractice plaintiff's actual injuries.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Except for injuries caused be acts that are proved to be deliberate, Colorado has eliminated joint liability such that a defendant in a malpractice case is responsible for that portion of the damages award proportionate to their percentage of fault for the injury.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Colorado has modified this rule, such that a claimaint's damages are reduced by the amount of payments received from collateral sources for which the plaintiff did not contract and make payment. However, where the plaintiff did contract for and pay for the benefits, the collateral source payments do not reduce the judgment.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Colorad, a plaintiff claiming medical malpractice has two years from the date of injury, and no more than three years from act or omission alleged to have caused the injury, unless the malpractice was knowingly concealed, the act or omission alleged to constitute malpractice consisted of leaving an unauthorized foreign object in the plaintiff's body, or both the physical injury and its cause were not known and could not have been known at an earlier date through the exercise of reasonable diligence.
For malpractice claims by minors under the age of six, the cause may be filed up to the minor's eighth birthday.
Additional rules affecting malpractice litigation in the State of Colorado include:
Alternative Dispute Resolution
In Colorado, the parties to a malpractice case may enter into a voluntary agreement to arbitrate a medical malpractice claim.
Certificate of Review
In Colorado, for a malpractice agction against a licensed professional or regulated acupuncturist, the plaintiff must file a certificate of review within sixty days after the service of the complaint, counterclaim, or cross claim against that defendant, unless the court extends that deadline. The certificate of review must declare that the plaintiff's attorney has consulted a person who has expertise in the area of the alleged negligent conduct, that the expert has properly reviewed the case, and that based upon the review the expert finds that the claim does not lack substantial justification. If the defendant is a physician, the certificate must declare that the witness meets the legal qualifications to testify as an expert, and is competent to express an opinion as to the alleged negligent conduct.
Medical Expert Witness Restrictions
In Colorad, in order to testify as an expert witness on an issue of negligence in a medical malpractice case against a physician, the proposed expert must be a licensed physician, 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 the disease or injury which is the subject matter of the action or proceeding against the physician defendant, he was substantially familiar with applicable standards of care and practice as they relate to the act or omission which is the subject of the claim on the date of the incident. A proposed expert in one medical subspecialty may not testify against a physician in another medical subspecialty unless the witness can demonstrate substantial familiarity, and also that the standards of care and practice in the two fields are similar. These limitations do not apply to expert witnesses testifying as to the degree or permanency of medical or physical impairment.
Colorado has a very broad rule that excludes statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, made by a health care provider or an employee of the provider, from being admitted in a malpractice case as evidence of an admission of liability or as evidence of an admission against interest.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.