If you think you might have a medical malpractice case in Colorado, you're likely wondering what state laws might impact your situation. In this article we'll discuss several important Colorado laws that might affect a medical malpractice claim, lawsuit, or settlement.
All states have very specific deadlines -- called statutes of limitations -- for filing a medical malpractice case in civil court. These statutes of limitations can be complex because they may contain as many as three or four separate deadlines.
The first part of the statute of limitations is the standard deadline, which gives victims of medical malpractice a certain number of years within which to file a lawsuit after the alleged malpractice takes place. The standard deadline in Colorado is two years. So, if you do not file a medical malpractice lawsuit within two years after the malpractice occurred, you lose your right to sue for medical malpractice -- unless you fall within one of the exceptions discussed below.
The second part of the statute of limitations is called the discovery rule, which is an exception to the standard deadline when the victim could not reasonably have learned that he/she even had a medical malpractice case.
In Colorado, under the discovery rule, the statute of limitations does not begin running until the date that the malpractice victim knows -- or, by the exercise of reasonable diligence, should have known -- both that he/she was injured and that the injury was caused by malpractice.
The third part of the statute of limitations is the deadline for minors (children under age eighteen) or their parents or legal guardians to file a medical malpractice lawsuit. In Colorado, there are two different statutes of limitations that apply to minor children.
First, a minor child under eight years of age who was under six years of age on the date of the alleged malpractice may file a medical malpractice lawsuit at any time prior to the child’s eighth birthday.
The second statute of limitations applies to minor children between the ages of eight and eighteen, and applies only in two rare situations.
For children between eight and eighteen, if a legal representative is appointed for them at any time after the alleged malpractice and before they turn eighteen, the child will be allowed two years from the date of the legal representative’s appointment within which to file a lawsuit.
The fourth part of the statute of limitations is sometimes called a statute of repose. A statute of repose imposes an absolute deadline to medical malpractice claims, regardless of when the victim discovered them. In Colorado, the statute of repose is three years, with several exceptions.
The statute of repose does not apply in cases where 1) the alleged malpractice was knowingly concealed by the defendant, 2) the alleged malpractice consisted of leaving an unauthorized foreign object in the body of the patient, or 3) both the physical injury and its cause are not known or could not have been known by the exercise of reasonable diligence.
Colorado has other exceptions to the statute of limitations that may apply in a medical malpractice case, depending on the circumstances. For example, the statute of limitations may be extended if the defendant left the state after committing the malpractice, or if the victim of malpractice was mentally ill or mentally disabled.
The Colorado statute of limitations for medical malpractice cases can be found at Colorado Revised Statutes section 13-80-102.5.
Some states have caps or limits in the amount of the damages that can be awarded to a victim of medical malpractice. In Colorado, there is a $300,000 cap on non-economic damages, including damages for pain, suffering, physical impairment, loss of enjoyment of life, loss of consortium, physical impairment, and disfigurement, and a $1,000,000 cap on total damages.
In some medical malpractice cases, the defendant may argue that you are at least in part liable for causing your own injuries by, for example, failing to follow the doctor’s instructions. If you go to trial and are found to be partially liable, that finding will reduce or even eliminate your damage award, depending on state law.
Colorado follows a “modified comparative negligence” rule. This means, if you are found to be in part negligent with respect to your case, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000. However, if the jury finds that your fault is equal to or greater than the defendant’s fault, then you are not entitled to recover any damages, and your case is dismissed.
Many states have passed laws requiring plaintiffs’ lawyers in medical malpractice cases to submit some proof of the defendant’s negligence at the beginning of the case before they will be allowed to proceed with the lawsuit.
In Colorado, the plaintiff’s attorney must file a certificate of review within sixty days after the lawsuit is served upon the defendant. The certificate must state that 1) the plaintiff’s attorney has consulted a person who has expertise in the area of the alleged negligent conduct, 2) the person who was consulted has reviewed the facts in the case, and 3) based on the review of such facts, the person who was consulted has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification.
The certificate of review must also state that the person who was consulted is a licensed physician who was substantially familiar with the applicable standards of care and practice as they related to the alleged malpractice as of the date of the malpractice.
Colorado also has a law about medical experts in medical malpractice cases. A medical expert in one specialty will not be permitted to testify against a physician in another specialty unless the expert can prove that he/she was substantially familiar with the applicable standards of care and practice in that other sub-specialty and that the standards of care and practice in the two specialties are similar.
These laws can be found at Colorado Revised Statutes sections 13-20-602 and 13-64-401.