When you turn to a medical provider for help, you expect him or her to provide just that—help. The last thing you expect is for him or her to cause you harm. When a medical provider’s actions or inactions result in unnecessary injury or even death, that person can be sued for medical malpractice. If you or a loved one was injured or killed by the negligent actions of a doctor, nurse, surgeon, or other healthcare professional, reach out to the team at the Olson Law Firm to discuss your legal options today.
Today’s Rate of Medical Malpractice
Medical malpractice is much more common than you might think. According to Forbes, medical malpractice costs $56.6 billion each year—$45.6 billion of which is spent on legal costs. In Colorado alone, there are 26,285 adverse action reports from the past two decades. According to findings published by U.S. News & World report, medical malpractice is now the third leading cause of death in the U.S., resulting in 250,000 deaths each year. Even one death by malpractice is too much, but 250,000 is unacceptable.
At the Olson Law Firm, we fight injustice in the best way we know how—by representing the victims of said injustice. If you or a loved one was injured by a medical professional, you have the right to compensation for your injuries and damages. Do not assume that your medical provider knows best, or that he or she did what was in your best interest and it just happened to not work out. You have rights if a serious injury, exacerbated an illness, or a deceased loved one are the result of a medical error. Call Denver medical malpractice attorneys Sean Olson today to discuss those rights in depth.
Proving Medical Malpractice
Proving liability in a personal injury claim can be difficult, but proving liability in a medical malpractice claim can be a downright headache. In 1988, Colorado enacted the Colorado Health Care Availability Act (HCAA) in an attempt to cut down on the costs of healthcare litigation in the state. The goal of HCAA is to ensure the continued availability of affordable healthcare services by decreasing the amount professionals pay in malpractice insurance. As a part of the initiative, the HCAA sets ground rules for malpractice litigation. Some limitations the HCAA imposes regarding the following matters include the following:
• Damage caps;
• Procedures and evidence in medical malpractice cases; and
• Agency and corporate relationships to physicians.
Moreover, the agency, as well as federal law, mandates that malpractice victims must prove that the five elements of negligence exist in each case. Those five elements are as follows:
• A legal duty exists and is owed whenever a hospital or healthcare provider treats a patient.
• That duty was breached because the provider failed to provide the necessary care. In other words, the medical professional or provider did not comply with the accepted standard of care.
• The breach directly or indirectly caused harm to the patient.
• Damage must have occurred. Without proof of damage, there is no basis for a claim even if the provider failed to meet the accepted standard of care.
If you are able to prove that medical malpractice exists, your case is still not closed. The deciding party (it could be a judge and jury or the insurance company, depending on whether or not the case settles out of court) will determine if modified contributory negligence exists.
Understanding Modified Comparative Negligence
In a comparative negligence system, a plaintiff may still recover some of his or her damages even if he or she was partially responsible for the accident. Damages would be reduced in accordance with how much fault was assigned to the victim (if 30 percent fault was assigned, damages would be reduced by 30 percent) and so on. If a too large percentage of fault is assigned to the plaintiff, damages may not be awarded at all.
In a contributory negligence system, a plaintiff may not recover at all, even if the percentage of fault assigned to him or her is only one percent. Currently only five states, including the District of Columbia, use a contributory negligence system.
Colorado is one of 33 states that use a modified comparative negligence system, or that follow the 50 percent rule. Under this system, a victim may recover damages so long as the percentage of fault assigned to him or her does not exceed 49 percent. If the level of fault reaches 50 percent, the person cannot recover damages.
Many people might assume that the modified comparative negligence rule does not apply in medical malpractice cases, but that is not the case. A person can have contributed to his or her own declining health by failing to follow doctor’s orders, maintaining certain lifestyle habits that exacerbated a condition, failing to take the prescribed medications, and so on. It is up to you and your Denver malpractice lawyer to prove that you did everything in your power to maintain optimal health, and that had it not been for the negligent medical professional, you could have done so without a problem.
Statute of Limitations on Medical Malpractice Lawsuits in Colorado
In addition to proving the five elements above, you must file your claim within the given time frame. This time frame is known as the “statute of limitations,” and if you file outside of it, you forfeit all rights to compensation. In Colorado, that statute of limitations is two years.
The reason for placing a time constraint on personal injury cases is to ensure that there is enough credible evidence to establish a cause of action. Over time, even in medical malpractice cases, evidence begins to fade, until it is unclear what the cause of the injury or ailment truly was. If you want your evidence to be compelling enough to convince a judge, jury, or insurance company that you deserve compensation, that evidence needs to be fresh.
While the two-year limitation is hard and fast, there is one exception to the rule. That exception is known as the “discovery rule.”
In many personal injury cases—especially those pertaining to medical malpractice—it is not uncommon for an individual to discover the injury or byproduct of negligence until months or even years after the incident that caused the injury. Common examples of this happening stem from misdiagnosis or failure to diagnose.
One such case happened in 2003, when a 42-year-old woman went into Jacobi Medical Center in Bronx, New York, complaining of a painful lump in her left breast that was also radiating down her arm. The attending physician performed a routine breast exam and ordered a mammogram, which revealed a 2 mm lump. A surgeon on staff (who later would become the defendant), performed a true cut biopsy, which revealed benign breast tissue. The plaintiff was told that the results were negative and that she would need to follow up with annual mammograms. This was in April.
The plaintiff continued to experience pain in her left breast, but when she returned to Jacobi Medical Center, she was told that the surgical wound just needed time to heal. In November, she returned again, complaining of a “sharp, burning pain.” In January of 2004, she underwent a needle biopsy, which revealed inconclusive results. In February, she underwent an incisional biopsy, which revealed that she had a Stage IIIA carcinoma.
This type of failure to diagnose is not uncommon. In fact, one radiologist missed 40 breast cancers in two years. Because of his failure to diagnose, the prognosis of 18 women who were given the all-clear had been “significantly affected.” One woman died because of the radiologist’s negligent actions. The other 17 women went on to sue the doctor for medical malpractice.
When incidences like this arise—when a person discovers a disease that should have been picked up by a competent medical professional months or even years earlier, or when a person begins to exhibit complications of a poorly performed medical procedures months after the fact—Colorado starts the statute of limitations at the date of discovery. For the woman whose healthcare facility failed to diagnose her with breast cancer, her stopwatch would have started in February of 2004, when an official diagnosis was made.
That said, Colorado’s discovery rule also comes with limitations. For instance, the time period to discover an injury is capped at three years, unless:
• The malpractice was knowingly concealed by the defendant;
• The malpractice consisted of leaving a foreign object in your body; and/or
• Your injury could not have been discovered or known via your own due diligence.
The Minor Exception
Colorado also makes exceptions for minors. If a person sustained an injury or injuries at the hands of a negligent medical professional when he or she was six years old or younger, he or she may file a lawsuit at any time before his or her eighth birthday.
If the injured party was older than eight but younger than 18 at the time of the incident, he or she may file a medical malpractice claim so long as he or she or his or her parents hired a lawyer prior to turning 18. From the point of hiring a Denver medical malpractice attorney, the victim has two years to file a claim against the negligent provider.
Determining Liability for Medical Malpractice in Colorado
When it comes to medical malpractice cases, it is not uncommon for more than one individual to be held liable. In some instances, whole organizations can be held liable. No one member of the medical community can do it all. For instance, a primary care physician needs the help of a radiologist to make a diagnosis. The radiologist needs the help of lab technicians to confirm a diagnosis. From there, a surgeon, oncologist, oncology nurse, dietician, and even psychiatrist is assigned to a patient. A mistake can occur at one level—with the primary care physician—or at another, with the lab technicians. If the primary care physician messed up, the mistake may be on him or her individually, but if the primary doctor, radiologist, and lab techs messed up, the organization as a whole might come under fire.
Your Denver medical malpractice attorney can help you determine at what stage a mistake was made and who or what was responsible for said mistake. He or she can then gather evidence that suggests that any other reasonable healthcare provider or providers would not have made the same error under the same or similar circumstances.
Colorado law defines a healthcare provider as anyone who is licensed to perform medical services on a person. Those professionals include:
• Dentists; and
• Any other person or entity in a position to treat a patient.
Caps for Recovery on Medical Malpractice in Colorado
If you are successful in your medical malpractice claim, you will be awarded damages. Under Colorado law, there are three types of damages that you may receive:
• Economic Damages: Economic damages are awarded in order to help you cover the financial costs of your injuries. In order to calculate economic damages, the decision maker would take into consideration your existing medical expenses, future medical expenses, lost wages, future lost wages, cost of home care, etc.
• Non-Economic Damages: Non-economic damages are those that you cannot really quantify, such as pain and suffering, loss of enjoyment of life, and loss of companionship. Though these damages are non-quantifiable, the decision maker will do his or her best to place a monetary value on them.
• Punitive Damages: Punitive damages are awarded as a means of punishing the defendant. The goal of punitive damages is to prevent similar behavior from occurring in the future.
Colorado places a cap on the damages awarded in medical malpractice cases. In total, no more than $1,000,000 may be awarded to any one malpractice victim for one injury and no more than $300,000 may be awarded in non-economic damages. That said, there is no cap on economic damages. If the court finds that the present value of past and future medical expenses and lost earnings exceeds the $1,000,000 cap, it may exceed the limitation. The punitive damages’ cap matches the actual damages awarded by the jury.
Expert Witness Testimony is Essential in Malpractice Cases
A malpractice case in Colorado cannot proceed without the testimony of an expert witness for three reasons:
• An expert witness can attest to the fact that any other reasonable healthcare provider with the same or similar training as the defendant would have acted differently in a same or similar situation;
• That expert can give testimony proving that there was a breach of the standard of care and that said breach resulted in your injury; and
• The state of Colorado requires the opinion of an expert.
After filing a malpractice claim, you have 60 days to submit a certificate of review. This certificate certifies that you have consulted with another medical professional with the same or similar training as the defendant and that that professional concluded that your claim has merit. This certificate is meant to prevent the filing of frivolous lawsuits. If you fail to submit a certificate of review, your case will be dismissed.
In order for a medical professional to qualify as an expert witness, he or she must meet certain standards:
• He or she must possess specialized knowledge based on their skill, experience, training, or education;
• He or she must be licensed; and
• He or she must be able to prove via undeniable evidence that, as a result of his or her skill, experience, training, or education, and because of his or her experience in the assessment, diagnosis, and treatment of an injury, he or she is familiar with the appropriate standards of care as they relate to the act or inaction claimed in your claim.
What to Do When You Believe You Are the Victim of Malpractice
If you suspect that you are the victim of malpractice, do not delay and reach out to the Olson Law Firm today. Our team has been preserving the rights of patients for nearly a decade and now we are prepared to preserve yours. Call our office today to schedule your free consultation or contact us online.