If you're planning to sue a health care provider in Colorado for medical malpractice, you will most likely need to enlist the help of a good medical malpractice attorney. These cases are known for being very complicated and difficult for injured patients to navigate successfully. Still, it's important to understand the process—so that you know what to expect and don't wait too long before taking action. Below, we discuss the most important laws in Colorado that can impact the outcome your medical malpractice case, including:
A statute of limitations is a law that sets a deadline for filing a lawsuit in court. Like most states, Colorado has a specific statute of limitations for medical malpractice cases. But it's not as simple as one deadline. The statute of limitations includes a standard and "outside" deadline, and the "clock" may start running at different times, depending on the circumstances.
In Colorado, any lawsuit based on alleged medical negligence by a health care professional or institution must be filed within two years after the action "accrues." Under what's often called the "discovery rule," Colorado law says that the cause of action accrues when "both the injury and its cause are known or should have been known by the exercise of reasonable diligence." (Colo. Rev. Stat. §§ 13-80-102.5(1), 13-80-108(1) (2021).)
Beyond the standard two-year deadline, Colorado law says that "in no event" may a medical malpractice lawsuit be filed more than three years after the incident of alleged negligence. (This outside limit is what's usually called a "statute of repose.") However, the law goes on to say that the three-year outside limit does not apply in certain circumstances, including when:
(Colo. Rev. Stat. § 13-80-102.5 (2021).)
In medical malpractice cases where the injured patient was younger than six years old at the time of the alleged negligence, Colorado law allows the lawsuit to be filed any time before the child's eighth birthday. In the case of older minors (under the age of 18) or injured patients who are mentally disabled, the two-year filing deadline applies as long as they have a legal representative. If they don't have a legal representative at the time at the negligence, the two-year period begins when a representative is appointed for them. (Colo. Rev. Stat. §§ 13-80-102.5, 13-81-103 (2021).)
Some other circumstances might extend the time for filing a medical malpractice lawsuit in Colorado. For instance, if the injured patient is under a continuing course of treatment with the defendant health care provider for a particular medical condition, the Colorado Supreme Court has held that the three-year period for the statute of repose doesn't begin until the last date of that treatment. Also, the statute-of-limitations clock is paused (or "tolled" in legal jargon) while a defendant is in hiding or is out of state and can't be served with legal papers for the lawsuit. (Comstock v. Collier, 737 P.2d 845 (Colo. 1987); Colo. Rev. Stat. § 13-80-118 (2021).)
In an attempt to weed out medical malpractice lawsuits that don't have valid legal grounds or are just plain frivolous, many states require injured patients to provide some kind of supporting proof when they file a lawsuit or soon thereafter. Colorado's version of this type of requirement is a "certificate of review."
Within 60 days after you've served a medical malpractice complaint on a defendant, your attorney must sign and file a certificate of review that declares both of the following:
The expert must have the education, training, knowledge, and experience to give an opinion about the alleged negligence in your case. When the defendant is a doctor, the expert must be a licensed physician in the same or a similar specialty as the defendant.
If there's more than one defendant in the case, you must file a separate affidavit of review for each one of them. You must also file an affidavit for the hospital or other company that employs any of the defendant health care professionals, even if the employer isn't named as a defendant in the lawsuit.
The judge may grant you more time to file the certificate of review, if there's a good reason that you need the extension. Otherwise, if you haven't filed a certificate, and the defendant believes that you wouldn't be able to prove the alleged negligence without an expert's testimony, the defendant may request a court order requiring the certificate. Your case will be dismissed if you don't meet the legal requirements for a certificate of merit. (Colo. Rev. Stat. §§ 13-20-602, 13-61-401 (2021).)
Many states have set caps on awards in medical malpractice cases, which limit the amount of compensation that you can receive for damages—the losses you experienced as a result of the defendant's negligence. Most of these caps apply only to noneconomic damages like pain and suffering. Colorado has two separate limits: one applying to noneconomic damages and one applying to the total damages, including economic damages like medical bills, lost income, and diminished earning capacity. The cap for noneconomic damages (including physical impairment or disfigurement) is currently $300,000, and the overall limit for all damages is $1 million. In cases involving multiple injured patients, these limits apply to each patient.
Colorado law allows one exception to the overall damages cap: If the court finds that a plaintiff's past and future economic damages would be more than the limit, and that there's a good reason it would be unfair to apply the cap, the court may award economic damages over the $1 million limit. (Colo. Rev. Stat. § 13-64-302 (2021).)
In some medical malpractice cases, the defendant may argue that you are at least partially responsible for your own injuries—for instance, by not following the doctor's instructions. In this situation, Colorado follows what's known as the "modified comparative negligence" rule. The rule works like this:
(Colo. Rev. Stat. § 13-21-111 (2021).)