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The Law of Medical Malpractice in Colorado:

A Survey of Basic Considerations

This article provides an overview of Colorado medical malpractice law. Colorado imposes various obstacles to malpractice suits, including requiring a plaintiff to immediately locate a medical expert who will vouch for the claim or else have the lawsuit dismissed. The purpose of such rules is to weed out unsupported claims at an early stage of the litigation. But plaintiffs with a strong case will be able to overcome these and other hurdles.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, the article will describe Colorado law in plain language with minimal use of legal jargon, so that the material is accessible to non-lawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice lawsuit in Colorado.

To jump directly to any topic in the Table of Contents, simply click on it.

I.Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
-Basic Time Limit
-Unknown Injuries
-Foreign Objects
-Concealment
-Injured Patients Who Are Minors
III. Certificate of Review and Other Requirements
-Certificate of Review
-Specifics of the Requirement
-A Case Example
-Notice to Patient’s Health Insurer
-Presuit Notice
-Arbitration
IV. Immunities and Limitations on Liability
-Emergency Medical Care
-Government Defendants
-Genetic Screening and Counseling
-Failure to Warn About Mental Health Patient’s Violent Behavior
V. Medical Expert Witnesses
-Who Qualifies?
-An Example
-Daubert Challenges
VI. Comparative Negligence / Proportionate Liability
VII. Limitations on Damages
-Overall Cap
-Exceptions to the Cap
-Exemplary Damages
VIII. Limitations on Attorney Fees
IX. Patient Compensation Funds
X. Apologies and Sympathetic Gestures
XI. Communications with Treating Physicians

I. Overview of Basic Principles and Concepts

To prevail on a claim of medical malpractice in Colorado, a plaintiff must prove that a healthcare provider failed to conform to an acceptable standard of health care and that this failure caused injury. A jury will compare the defendant’s conduct with what a reasonably careful healthcare provider in the same field of practice would have done in the same circumstances. Wallbank v. Rothenberg, 74 P.3d 413 (Colo. App. 2003); Tracz v. Charter Centennial Peaks Behavioral Health Systems, Inc., 9 P.3d 1168 (Colo. App. 2000).

Colorado’s primary statute addressing medical malpractice (also called medical negligence) is the Health Care Availability Act. Colo. Rev. Stat. §§ 13-64-101 to -503. However, some important provisions governing malpractice claims are found in other parts of Colorado’s legal code.

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

The basic time limit in Colorado for filing a medical malpractice claim is two years. The two-year “statute of limitations” begins running on the date the plaintiff discovers, or should have discovered, both the injury and its cause. Colo. Rev. Stat. § 13-80-102.5(1).

A separate provision establishes an outer limit by requiring that any lawsuit also be brought within three years after the underlying act or omission. Id.; Liscio v. Pinson, 83 P.3d 1149 (Colo. App. 2003). However, there are exceptions to these rules, as discussed below.

Unknown Injuries

First, the above rules do not apply if “both the physical injury and its cause are not known or could not have been known by the exercise of reasonable diligence,” the Colorado statute says. Colo. Rev. Stat. § 13-80-102.5(3)(c).

Foreign Objects

In addition, if a physician leaves an unauthorized foreign object in a patient’s body (e.g., a sponge), the clock does not begin ticking on the two-year time limit until the plaintiff discovers, or should have discovered, the healthcare provider’s error. Colo. Rev. Stat. § 13-80-102.5(3)(b).

Concealment

If a healthcare provider knowingly conceals his or her negligence, the two-year clock does not begin running on a malpractice claim until the plaintiff discovers, or should have discovered, the medical error. Colo. Rev. Stat. § 13-80-102.5(3)(a); Quiroz v. Goff, 46 P.3d 486 (Colo. App. 2002).

Injured Patients Who Are Minors

Special time limits apply to malpractice suits involving children. If a minor under six years of age is injured by healthcare treatment, a lawsuit may be brought “at any time prior to his attaining eight years of age,” the statute says. Colo. Rev. Stat. § 13-80-102.5(3)(d); Pressey v. Children’s Hosp. Colorado, 2017 COA 28 (Colo. App. 2017).

III. Certificate of Review and Other Requirements

Certificate of Review

In general, malpractice plaintiffs in Colorado must quickly locate a medical expert who will vouch for the claim or else the suit will be dismissed. Within 60 days after filing a malpractice lawsuit, a plaintiff must file with the court a certificate of review attesting that the plaintiff has consulted a person who has expertise in the area of the alleged negligent conduct and that the malpractice claim does not “lack substantial justification.” Colo. Rev. Stat. § 13-20-602; State v. Nieto, 993 P.2d 493 (Colo. 2000).

The certificate of review requirement is designed to weed out poorly supported claims. It “forces a plaintiff” to obtain professional confirmation that the complaint “is not frivolous early in the case, before the defendant begins to incur expenses in providing discovery, compiling privilege logs, and the like,” in the words of the Colorado Court of Appeals. Williams v. Boyle, 72 P.3d 392 (Colo. App. 2003).

No certificate of review is necessary, however, if the claim can be proved without the need for expert testimony. However, most medical malpractice claims require expert testimony, so most malpractice plaintiffs must file a certificate of review. Williams v. Boyle, supra.

Failure to file a satisfactory certificate of review within the applicable time limit will result in the dismissal of the lawsuit. Colo. Rev. Stat. § 13-20-602.

Specifics of the Requirement

The person who signs the certificate of review is generally the plaintiff’s attorney. The certificate must state that the attorney has consulted a medical expert who has reviewed the known facts and has concluded that the malpractice claim does not “lack substantial justification.” Id.

The medical expert’s identity need not be disclosed to the opposing side in the lawsuit. But the court may insist on being told the expert’s identity and, if the court deems it necessary, may require the plaintiff to provide further verification of the expert’s medical opinion, such as by submitting an affidavit from the expert. Id.; Yadon v. Southward, 64 P.3d 909 (Colo. App. 2002).

If the defendant is a physician, the certificate must state that the expert satisfies the requirements expert witnesses testifying against physicians must possess (see Section V below). Colo. Rev. Stat. § 13-20-602.

Although the plaintiff generally is given only 60 days from the filing of the lawsuit to provide the certificate, the court may grant an extension of time for “good cause.” Id.; Williams v. Boyle, supra.

A Case Example

In Yadon v. Southward, supra, a plaintiff who was representing himself in the lawsuit (in legal terminology, proceeding “pro se”) filed a malpractice suit against a podiatrist who performed surgery on one of his toes. As required, the plaintiff submitted a certificate of review stating that he had consulted with a physician who confirmed that the malpractice claim did not lack substantial justification.

But the trial court was dubious about the plaintiff’s certification and gave him 10 days to identify the physician he had consulted and obtain the physician’s signed affidavit confirming the medical opinion. (As noted earlier, a court may require further verification of a certificate of review.)

When the plaintiff later informed the court that the doctor said he was uncomfortable signing an affidavit, the trial judge dismissed the case, denying the plaintiff’s request for an extension of time to track down another physician who would vouch for his claim. But on appeal, the Colorado Court of Appeals concluded that the plaintiff had shown “good cause” for an extension and should have been granted additional time to satisfy the certificate of review requirement.

Notice to Patient’s Health Insurer

Under another provision of Colorado law, a malpractice plaintiff must, within 60 days of filing a lawsuit, send written notice to any “third party payor or provider” and file a copy with the court. The purpose of this notice is to enable the plaintiff’s health insurer to assert its right to be reimbursed from any monetary award the plaintiff obtains in the lawsuit (in legal terminology, to protect the health insurer’s right to “subrogation”). Colo. Rev. Stat. § 13-64-402; Mullins v. Kessler, 83 P.3d 1203 (Colo. App. 2003).

Presuit Notice

Unlike some other states, Colorado does not have a statute requiring a plaintiff to give advance notice to a defendant before filing a malpractice suit.

Arbitration

Arbitration is a method of resolving disputes outside of a courtroom using less formal procedures than would apply in court. Both parties must agree that the case will be submitted to an arbitrator rather than a judge and jury. Under Colorado law, healthcare arbitration agreements must contain certain information, including a bold-faced, conspicuous notice that patients have a right to rescind the agreement within 90 days if they wish to do so. Colo. Rev. Stat. § 13-64-403(3), (4).

The Colorado Supreme Court has ruled that this law remains in force and is not nullified, or “preempted,” by the Federal Arbitration Act, at least in many contexts. Allen v. Pacheco, 71 P.3d 375 (Colo. 2003); see also Fischer v. Colorow Health Care, LLC, No. 15CA1252, 2016 WL 4699115 (Colo. App. Sept. 8, 2016), cert. granted, 2017 WL 825315 (Colo. Feb. 21, 2017).

IV. Immunities and Limitations on Liability

Emergency Medical Care

While some states have adopted special proof rules applicable to malpractice suits against emergency room physicians, recognizing that emergencies allow less time to make informed treatment decisions, Colorado has no such statute.

But the state does have a “Good Samaritan” law that protects physicians who render uncompensated assistance in an emergency to someone who is not their patient. Colo. Rev. Stat. § 13-21-108. See also Colo. Rev. Stat. § 13-21-108.7 (persons rendering emergency assistance through the administration of an opiate antagonist) and Colo. Rev. Stat. § 13-21-108.1 (persons rendering emergency assistance through the use of automated external defibrillators). And see generally Acierno v. Garyfallos, 2016 COA 91 (Colo. App. 2016).

Government Defendants

Because governments ordinarily cannot be sued without their consent, government-run hospitals and the personnel who work at them may defend against malpractice suits by arguing that they are immune from suit. The Colorado Governmental Immunity Act addresses these types of questions. Colo. Rev. Stat. § 24-10-101 to 24-10-120; State v. Nieto, 993 P.2d 493 (Colo. 2000).

In suits against government hospitals (or other government entities), medical malpractice plaintiffs must comply with certain notice requirements or else the suit may be dismissed. Colo. Rev. Stat. § 24-10-109; Miller v. Campbell, 971 P.2d 261 (Colo. App. 1998).

Genetic Screening and Counseling

An unusual and confusingly worded provision of Colorado law limits malpractice liability relating to “genetic counseling and screening and prenatal care” or “genetic disease.” The statute says that a plaintiff cannot recover damages on a malpractice claim of this kind unless the injury “could have been prevented or avoided by ordinary standard of care.” Colo. Rev. Stat. § 13-64-502.

In American Economy Insurance Co. v. Schoolcraft, a court concluded that the rarely applied law provided some protection to physicians who allegedly promised they would perform genetic screening and then failed to detect that an embryo carried the cystic fibrosis genetic mutation. 551 F. Supp. 2d 1235 (D. Colo. 2007).

Failure to Warn About Mental Health Patient’s Violent Behavior

Another provision of Colorado law protects mental health providers who fail to warn that their patients might commit violent acts. Under the statute, psychiatrists, psychologists, social workers, and other mental health professionals “shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior,” unless there has been a specific threat of violence against that third party. Colo. Rev. Stat. § 13-21-117; Marcellot v. Exempla, Inc., 317 P.3d 1275 (Colo. App. 2012).

V. Medical Expert Witnesses

Who Qualifies?

Medical malpractice cases typically depend heavily on the testimony of medical experts, who aid the court and the jury in understanding the underlying medical issues on which the outcome of the case depends. In Colorado, there are strict rules about who may give expert testimony concerning issues of negligence in a medical malpractice case.

First, if the defendant is a physician, the expert witness must be a licensed physician who is “substantially familiar” with applicable standards of health care and practice relating to the defendant’s alleged act or omission. Colo. Rev. Stat. § 13-64-401.

Second, a physician in one medical specialty generally may not testify as an expert against a physician in another medical specialty, unless “the standards of care and practice in the two fields are similar.” Id.

An Example

In Hall v. Frankel, a patient died from blood clots in his heart and lungs eight days after having a total left knee replacement. The family sued the orthopedic surgeon (and others) for malpractice.

During trial, the surgeon’s attorney made continuing objections seeking to prevent the jury from hearing testimony from expert witnesses who were not orthopedic surgeons.

But the trial court allowed the testimony, reasoning that the treatment of blood clots after surgery is common to many branches of medicine, so it was fine for a hematologist and a pulmonologist to serve as expert witnesses. The jury found the surgeon negligent.

On appeal, the Colorado Court of Appeals upheld this evidentiary ruling, commenting that the standard of care for diagnosing and treating blood clots is “identical regardless of specialty.” That is to say, in this particular instance the expert witnesses did not have to be of the same medical specialty as the defendant. 190 P.3d 852 (Colo. App. 2008); see also Jordan v. Bogner, 844 P.2d 664 (Colo.1993); Gasteazoro v. Catholic Health Initiatives Colorado, 2014 COA 134 (Colo. App. 2014).

Daubert Challenges

Besides satisfying the above statutory requirements, a medical expert’s testimony must also comply with Colorado Rule of Evidence 702. This evidentiary rule requires a court to assess whether a witness is competent to testify based on knowledge, skill, experience, training, and education, and also to decide whether the intended testimony is scientifically reliable, helpful to the jury, and unlikely to significantly mislead the jury. Estate of Ford v. Eicher, 250 P.3d 262 (Colo. 2011).

VI. Comparative Negligence / Proportionate Liability

Sometimes a healthcare provider will try to pin blame for a poor treatment outcome on the patient, insisting that the patient neglected to follow post-surgery instructions or supplied inaccurate health history information, for instance. To address situations in which a patient actually does bear some degree of fault, Colorado applies the doctrine of “comparative negligence.”

Under this doctrine, a blameworthy patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced in proportion to the degree of the patient’s fault. For example, if a healthcare provider was 75 percent at fault for the injury and the plaintiff 25 percent at fault, the plaintiff can recover damages but their amount will be reduced by 25 percent. Note, however, that if the plaintiff was 50 percent or more responsible, he or she is barred from receiving anything. Colo. Rev. Stat. § 13-21-111; Sheron v. Lutheran Medical Center, 18 P.3d 796 (Colo. App. 2000).

On a separate issue, if there is more than one negligent healthcare provider, it is necessary to decide who pays what share of the monetary damages. Under Colorado law, each defendant generally is liable for only so much of the plaintiff’s damages as are allocated to that defendant in proportion to that defendant’s percentage of fault. That is, if a particular defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. Colo. Rev. Stat. § 13-21-111.5; see also Bethel v. United States, 544 F. App’x 807 (10th Cir. 2013) (unpublished) (malpractice suit involving Denver Veterans Affairs Medical Center).

VII. Limitations on Damages

Overall Cap

Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” In Colorado, medical malpractice damages are subject to an upper limit, or “cap.” Generally speaking, the maximum amount a plaintiff may recover from all defendants is $1 million. Also, no more than $300,000 of the $1 million cap may be attributable to items such as pain and suffering, emotional stress, and impairment of the quality of life (known as “non-economic loss”). Colo. Rev. Stat. § 13-64-302; Pressey, supra; Wallbank v. Rothenberg, 140 P.3d 177 (Colo. App. 2006).

The jury is not told of the damage limits. Therefore if, as in Pressey, a jury finds that a healthcare provider was negligent and awards $17 million, the court must reduce the damages so they do not exceed the statutory ceiling.

Exceptions to the Cap

There are some exceptions to these upper limits. First, the cap does not apply to items such as medical expenses, custodial care expenses, and lost earnings (known as “economic” loss), if applying the cap would be unfair. Colo. Rev. Stat. § 13-64-302; Vitetta v. Corrigan, 240 P.3d 322 (Colo. 2009).

In addition, the cap does not limit damages for physical impairment or disfigurement. Colo. Rev. Stat. § 13-64-302; Preston v. Dupont, 35 P.3d 433 (Colo. 2001).

Exemplary Damages

Exemplary damages are a category of damages that can be awarded to a plaintiff for the purpose of punishing an especially culpable defendant, such as one whose behavior involved fraud or malice. The upper limit on exemplary damages depends on and is linked to how much is awarded in compensatory damages. Colo. Rev. Stat. § 13-64-302.5.

A plaintiff who seeks exemplary damages must follow special procedures: a request for exemplary damages should not be included in the initial claim for relief but instead may be added by amendment after the parties have substantially completed discovery and only if there is sufficient evidence to support the request. Id.; Sheron v. Lutheran Medical Center, 18 P.3d 796 (Colo. App. 2000).

VIII. Limitations on Attorney Fees

Unlike some states, Colorado does not have a statute that limits medical malpractice attorney fees.

IX. Patient Compensation Funds

While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, Colorado has not done so.

X. Apologies and Sympathetic Gestures

If a healthcare provider offers an apology for a poor treatment outcome, the question arises whether the apology can be used in court as evidence of negligence. The general rule in Colorado is no. By statute, an expression of “apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” with regard to a patient is not admissible in court to prove that the healthcare provider is liable. Colo. Rev. Stat. § 13-25-135.

XI. Communications with Treating Physicians

While Colorado law often protects the confidentiality of patient-physician communications, an individual who asserts a medical malpractice claim waives some of these rights. Specifically, a patient generally cannot prevent defense counsel from contacting a physician or registered nurse “who was in consultation with” the defendant healthcare provider on the medical matter out of which the suit arises. Colo. Rev. Stat. § 13-90-107(1)(d). But a court may order restrictions or limits on such communications if there is a risk of disclosing the patient’s confidential information unrelated to the malpractice claim.

In Acierno v. Garyfallos, supra, the Colorado Court of Appeals held that the trial court did not err in allowing defense counsel to meet and confer with a radiologist who had interpreted the patient’s MRI results, even though the informal meeting was conducted outside the presence of the plaintiff’s counsel (in legal terminology, an “ex parte” communication).