Colorado Medical Malpractice Laws

In 2016, Colorado resident Samuel Chifalo filed a medical malpractice lawsuit against Parkview Medical Center, where he sought treatment after suffering a fall in his home. In the suit, Chifalo alleged that the facility’s medical staff failed to recognize a spinal cord injury he suffered due to the fall, despite the weakness and lack of motion in his arms and legs. According to his lawyers, the injury, which ultimately resulted in permanent paralysis, could have been addressed through neurosurgery. A jury voted in favor of Chifalo and awarded him $3 million in damages, which remains one of the largest jury verdicts in the history of Pueblo County.

Chifalo’s case is just one of many medical malpractice incidents that have occurred in Colorado. In 2022 alone, the state recorded over 1,600 reports of adverse action taken against healthcare practitioners. According to the National Practitioner Data Bank, almost 800 of these reports were filed between January 1 and June 30 of the same year.

Medical malpractice may occur in many forms, and the factors involved are often more complex than those usually encountered in other injury cases. To help victims and their families understand these factors and the legal options they can take, this article will provide a detailed summary of Colorado’s medical malpractice laws and guidelines.

What Qualifies as Medical Malpractice in Colorado?

In Colorado, medical malpractice takes place when a doctor or medical practitioner fails to adhere to the state’s medical standard of care, with their failure resulting in the patient’s injury or death. This standard, as defined by state law, refers to the actions and precautions that medical professionals within the same school of medicine would generally follow in treating patients.

Medical malpractice cases in Colorado may be any of the following:

• Surgical and anesthetic mistakes.

• Misdiagnosed illnesses.

• Incorrectly prescribed medication.

• Birth injuries.

• Failure to obtain a patient’s consent involving a certain procedure or treatment.

• Failure to record or interpret medical findings.

It should be noted that medical malpractice differs from medical negligence, even if the two terms are often used interchangeably. Negligence refers to the failure of a medical professional to follow the basic standard of care in a certain situation. As such, it is a broader term that serves only as a component of medical malpractice. To prove whether a healthcare practitioner’s action or inaction entails malpractice, they must prove certain legal factors, which will be discussed later.

An example of medical negligence involves a doctor who fails to correctly identify a patient’s illness, conduct an in-depth evaluation of their condition, or refer a patient to a proper specialist. Meanwhile, medical malpractice can occur when a doctor carries out surgery on the wrong patient or surgically removes the wrong body part.

Who Can You Sue for Medical Malpractice in Colorado?

Generally, a victim of medical malpractice in Colorado can take legal action against the doctor or practitioner who erred in carrying out their profession and caused the patient’s injury. They can also sue the hospital if the nurses or other personnel contributed to the injury instead of suing individually.

Oftentimes, a hospital cannot be held liable for the negligence committed by a doctor. However, if a hospital allowed the latter, who lacked sufficient training and expertise or had prior patient complaints, to perform a procedure that resulted in a patient’s injury, it could be held liable for the malpractice. In addition, a hospital can be sued if it fails to enforce proper safety protocols, preserve patient records, or hire qualified or licensed staff members.

On the other hand, nursing malpractice can happen if a nurse fails to follow a doctor’s orders or administers the wrong medication. It can also occur if the nurse does not carry out routine treatments or relay the correct information to the patient or doctor.

In some cases, a victim can take legal action against a pharmacist for providing or filling the wrong drug for their treatment. Moreover, they can sue if a pharmacist fails to provide proper instructions on how to use a certain drug.

Exemptions

It must be noted that Colorado has a Good Samaritan Law that can potentially affect a medical malpractice case. Specifically, the law states that any licensed physician or surgeon who administers emergency treatment to a person not currently their patient at an accident or emergency site will not be held liable for any civil damages that may stem from their actions.

An exception to the Good Samaritan Law only occurs if the actions involved were wanton or grossly negligent. Likewise, the law will not apply if the physician or surgeon carries out emergency treatment for someone they are already obligated to care for.

Colorado also has a sovereign immunity law that protects government agencies and their personnel from being sued. However, this immunity can be waived if a person is injured in a public hospital operated and overseen by an agency.

Lastly, under state law, the victim of a malpractice incident that involves a genetic disease or genetic counseling, screening, or prenatal care cannot recover damages unless they can prove that their injury could have been prevented or avoided if the usual standard of care was followed.

Medical Malpractice Liability Insurance Requirements

Colorado is one of seven states in the country that require all medical professionals to obtain and maintain medical malpractice insurance to establish financial responsibility, as defined under the state’s Health Care Availability Act. This type of insurance coverage pays for any costs related to lawsuits or claims filed by patients who have been injured under their care.

Colorado requires medical professionals to maintain a minimum of $1 million per incident and $3 million as an annual aggregate limit for their medical malpractice insurance. The state also recommends high-risk specialists obtain higher amounts of coverage due to the nature of their work.

Medical professionals in Colorado must obtain medical malpractice insurance when they are applying for their license. Conversely, if they are exempted from the state’s requirements in line with Rule 1.14, Section D of the Colorado Medical Board’s Rules and Regulations, they must submit a signed statement that also specifies the exemption in question.

What Is the Statute of Limitations in Colorado for Medical Malpractice Cases?

Colorado law states that any lawsuits or claims related to medical malpractice cases must be filed within two years, with the deadline starting on the date when the malpractice in question happened. If a victim or their representative fails to file a suit within this given time frame, they will no longer be allowed to take legal action. The state also has a “statute of repose” wherein no plaintiff may file a claim or lawsuit beyond three years from the date of the malpractice that occurred.

Additionally, if a victim wishes to sue a government-run hospital in Colorado or its personnel, they must notify the Attorney General of their claim within 128 days from the date of their injury or loss.

Potential Exceptions

Colorado does allow certain exceptions to its statute of limitations for medical malpractice cases. For example, under the state’s discovery rule, the two-year deadline will only begin counting down on the date when the victim discovers or should have reasonably discovered their injury and its underlying cause. This can apply in malpractice cases where a condition, injury, or illness caused by a practitioner’s negligence manifests at a later time.

Furthermore, the three-year limit of Colorado’s statute of repose does not apply if:

• The malpractice in question involves a foreign object that was left in the victim’s body and does not belong there.

• The physician or practitioner who committed the malpractice purposefully concealed their negligence.

• The victim’s injury and its cause were not known and could not be reasonably determined.

The statute of repose also works differently if the victim is still undergoing treatment for their condition under the defendant’s care. In this scenario, the statute will only begin counting down after the date of the victim’s last treatment.

Exceptions for Minors and Legally Incompetent Individuals

In addition, Colorado follows different rules for its statute of limitations in the following scenarios:

• If a case involves a minor or a legally incompetent individual, the statute will only begin counting down once they have a legal representative who can file a suit or claim on their behalf.

If the person reaches the age of 18 or recovers from their incompetence, they can take legal action within the period set by Colorado’s statute of limitations or within two years after they turned 18 or recovered, whichever period ends later.

• If a case involves a child who was six years old when the incident of malpractice occurred and is currently younger than eight years old, their parent, guardian, or representative can take legal action at any time before the child’s eighth birthday.

• If the person under any of these legal disabilities dies before any lawsuit or claim is filed, their executor or administrator will have up to one year from their date of death to file on their behalf.

Concealment and Absence from the State

Lastly, Colorado’s two-year statute of limitations is “tolled” or paused if the defendant goes into hiding or leaves the state. Specifically, the statute will only begin counting down once the defendant’s concealment ends or once they return to the state. Moreover, their period of absence or concealment will not be counted toward the statute’s duration.

What Do You Need to Prove in a Colorado Medical Malpractice Case?

As mentioned above, to show that medical malpractice occurred, the plaintiff in the case must determine the defendant’s negligence by proving the following legal elements:

• The defendant in the case owed a duty of reasonable care to the plaintiff.

• The defendant breached that duty of care.

• Their breach of duty resulted in the plaintiff’s injury and losses.

• The defendant has the financial assets or means to compensate the victim for their losses.

Certificate of Review

Those who are victims of medical malpractice in Colorado must also submit a certificate of review within 60 days after they have filed a complaint against the medical practitioner involved. The certificate must state that the victim’s lawyer has spoken with a qualified expert who reviewed the case and that the latter found a “substantial justification” for the victim’s lawsuit based on the case’s facts. The expert must be a licensed physician or practitioner who works in the same field as the defendant.

In case there are multiple defendants in a victim’s case, a certificate of review must be filed for each of them. The same must be done for the hospital or company where any of the defendants work, even if it is not specified as a defendant in the case.

Res Ipsa Loquitur

Colorado can also follow the principle of res ipsa loquitur or inferred negligence, where the victim may no longer need to prove the defendant’s breach of their duty of care because their negligence can already be deduced from the injury suffered by the victim. Additionally, the principle follows the notion that the injury would not have occurred in the first place unless someone (the defendant) had acted negligently.

Inferred negligence can apply in cases where a foreign object is left inside the body of a patient after a surgical procedure. It can also be used in cases where a patient sustains an injury that is far away from the area of their body that was operated on.

Colorado’s “I’m Sorry” Law

It should be noted that Colorado has an apology law that can apply to medical malpractice cases. The law declares that plaintiffs cannot use a defendant’s expression of apology, sympathy, fault, condolence, or compassion as evidence of the latter’s liability in a subsequent lawsuit. The state is one of the few in the country that offers total protection for apologies to medical practitioners and providers.

How Much Can You Sue For Medical Malpractice in Colorado?

When awarding damages to medical malpractice victims, courts in Colorado take multiple factors into account, including the severity of the victim’s injury, the length of their period of rehabilitation, and the monetary and non-monetary losses they have incurred. To help them calculate their recoverable damages, victims can approach a medical malpractice lawyer for guidance.

Types of Damages

The types of damages that a victim in Colorado can recover often include the following:

• Present and future medical expenses.

• Loss of income (due to the victim’s inability to work).

• Damages related to disfigurement or physical impairment.

• Non-economic losses, such as those related to pain and suffering.

• Funeral and burial costs (if the victim died from the malpractice).

However, Colorado does impose a cap of $300,000 on the total non-economic damages that malpractice victims can recover. The same limit applies to recoverable damages in a wrongful death claim if the victim dies.

Furthermore, the total economic and non-economic damages that are awarded to a victim are capped at $1 million. This cap can be waived if the court finds enough good reason to do so, depending on the victim’s losses.

Lastly, if the defendant in a case is a government agency, a victim’s total recoverable damages are limited to $350,000.

Colorado’s Negligence System

When it comes to medical malpractice cases and those that involve negligence in general, Colorado follows the principle of modified comparative negligence. This means that the fault of a medical malpractice victim must not reach or exceed 50%, or else they will be barred from recovering any damages.

Additionally, under modified comparative negligence rules, any plaintiff who is deemed partially liable for the incident that caused their injury will have their recoverable damages deducted. The percentage of the reduced amount will be equal to the percentage of their given fault.

Other Methods of Obtaining Compensation

As an alternative to filing a lawsuit, medical malpractice victims can choose to settle their case out of court through an “open discussion,” as stated by the Colorado Candor Act. The process can only be initiated by a healthcare practitioner through a written notice, which must be submitted within 180 days from the date when they became aware of the “adverse healthcare incident” that injured their patient.

During the open discussion, both parties can discuss the matters involved in their case, including warranted compensation. Any information shared between parties will remain confidential and will not be treated as admissible evidence in a subsequent lawsuit in case no agreement is reached.

While a victim is not required to agree to the open discussion process, it can help them avoid the higher legal costs and complex requirements involved in taking their case to court. To understand the process better, they can speak to an attorney for its details and requirements.

How Much Does It Cost to Pursue a Medical Malpractice Case in Colorado?

The costs involved in filing a medical malpractice lawsuit or claim in Colorado vary from case to case. In almost all scenarios, attorney fees are included in a plaintiff’s total expenditures. These are paid on a contingency basis through an agreement wherein the plaintiff’s lawyer will be given a percentage of the total settlement or damage award in the case as payment for their counsel.

On average, contingency fees in Colorado range from 25 to 40 percent of the plaintiff’s total recovered damages. An attorney may charge less if the case is resolved through a settlement or open discussion. The state does not impose any limits on contingency fees for medical malpractice actions as long as they fall within a reasonable range. Prior to filing a suit, plaintiffs can speak to lawyers to determine what their contingency fee options are.

Other related costs in a medical malpractice action include:

• Filing fees.

• Expert witness fees, which vary depending on whether the witness will provide a deposition or courtroom testimony.

• Arbitration fees (if a victim chooses this option).

• Discovery-related expenses (for interrogatories, requests for production, etc.).

Legal Resources for Medical Malpractice Victims in  Colorado

Colorado Bar Association

The Colorado Bar Association has public resources and services that state residents with legal concerns can access through its website. Its directories can help people find platforms and legal clinics that offer information regarding civil law matters. In addition, users can look for licensed lawyers for potential legal representation through the organization’s member directory.

Colorado Department of Regulatory Agencies - File A Complaint

People in Colorado can file a complaint involving healthcare-related incidents, including those that concern substandard practice and misdiagnoses, with the Department of Regulatory Agencies’ Division of Professions and Occupations. A complainant can refer to the complaint form for instructions on where to file and what other documents and requirements they need. The DPO can be reached via telephone at 303-894-7800 or through e-mail at dora_dpo_licensing@state.co.us for further inquiries.

Uncompahgre Volunteer Legal Aid

Uncompahgre Volunteer Legal Aid provides assistance to low-income individuals and families within specific counties in Colorado, including Montrose and Hinsdale. Eligible users can apply through the clinic’s website for the opportunity to consult with an attorney about their case and other legal topics, including pro bono representation and mediation. For additional questions, they can contact UVLA at either 970-249-7202 or ic@uvlamontrose.org.