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3 Facts About Medical Malpractice Claims We Bet You Didn't Know

Posted by: Chad Hemmat | Wednesday, January 04, 2012 | 0 Comments | Back to Personal Injury Blog

From my 20 years of experience as a trial attorney, I have learned that pursuing a medical malpractice against a healthcare provider is always challenging. Bringing a malpractice claim in Colorado is especially challenging compared to other jurisdictions because of the strict statutory rules and requirements associated with prosecuting such a claim. Simply having a doctor who causes an injury by acting negligently is only the starting point of a malpractice claim. If you have a malpractice claim, it is essential to hire an attorney who is well-versed in the rule-driven pitfalls associated with this sort of claim because otherwise, your case can quickly be swallowed and decimated.

To provide you with a better understanding of medical malpractice claims, this article will discuss 3 facts about Colorado medical malpractice claims that we bet you didn't know.

1) YOU NEED A DOCTOR AS MUCH AS A LAWYER (and probably more) TO START A CLAIM

Before you or your lawyer files a lawsuit against a negligent doctor, C.R.S. § 13-20-601 and § 13-20-602 require you to you find a similarly qualified doctor to review your case and determine that the conduct of the treating doctor was a breach of the standard of care. The reviewing doctor must consider the facts and records associated with your case and find that the treating doctor's conduct was a bonafide deviation from the accepted standard of care and that deviation CAUSED your injuries. THEN AND ONLY THEN can a malpractice claim be brought against a doctor or healthcare provider. In fact, if you don't have a doctor willing to give such an opinion, your case will likely be dismissed within 60 days of serving your lawsuit on the defendant doctor or healthcare provider.

Often, when I first speak with potential medical malpractice clients, I will first give them an opportunity to explain why they think their doctor was negligent and to describe the injuries that their doctor's negligence caused. Afterwards, I tell them, "Well that sounds pretty bad, but what does your new doctor think about what your last doctor did to you?"

I ask this question because I am trying to determine how difficult it is going to be to get a doctor to determine that the treating doctor's conduct was negligent and fell below the standard of care. Because of the strict statutory requirements in Colorado, locating a doctor willing to stick her neck out and support the bringing of a medical malpractice claim against another doctor is the first requirement that must be fulfilled before we launch our attack and start throwing grenades.

Frankly, most potential medical malpractice claims that we encounter get stalled at this phase. Unfortunately, if we cannot get a doctor that will support the bringing of a medical malpractice claim against your treating doctor, your claim is a non-starter. Therefore, if you believe that you a potential medical malpractice claim against a doctor, you should call a lawyer AND talk to your current doctor because you will need a doctor as much as a lawyer to start your claim.

2) UNLESS YOU LIKE PAYING HEALTH INSURANCE WITH YOUR MALPRACTICE AWARD, YOU NEED TO SEND THEM A SPECIAL ADVANCED NOTICE

Once your medical malpractice claim gains the support of a doctor, it is now time to file your claim and go to battle. After you eventually win your claim and receive your settlement or award money, it is now time to fight the next battle. The next battle in a medical malpractice claim is to determine how much money, if any, does your health insurance get paid back for the added care that you underwent because of the negligent doctor. Once we get to this point, my clients always believe and insist that the insurance company should get nothing.

However, to prevent the insurance company from taking any money from your settlement or award, your lawyer must submit a special notice to the health insurance company pursuant to C.R.S. § 13-64-402 sixty (60) days after filing your lawsuit. If the health insurance company fails to properly respond to this notice within ninety (90) days, then you will get all of your settlement and not have to pay the insurance company anything. If your lawyer is not familiar with this requirement and does not file this special notice, the insurance company might collect most or perhaps all of the monetary recovery from your medical malpractice claim.

3) STATE CAPS ON DAMAGES LIMITS RECOVERY REGARDLESS OF HOW HURT YOU ARE

A lawyer called me last week to talk about a case that she was bringing against a doctor. We talked for a few minutes and she told me how scarred and injured her client was because of the negligence of this particular doctor. Towards the end of the conversation, this lawyer asked me how much I thought her claim was worth. She was shocked when I told her $300,000 and unfortunately, not a penny more. I didn't come up with this number to be stingy or pessimistic. To the contrary, pursuant to C.R.S. § 13-64-302, non-economic losses including pain, suffering, and even permanent physical impairment arising from a medical malpractice claim are capped in Colorado at $300,000.

This means that even if a jury awards you millions of dollars against a doctor, the judge will simply reduce the verdict to $300,000. Also, medical malpractice claims that result in exorbitant wage loss or future medical needs are capped at one million dollars pursuant to C.R.S. § 13-64-302. That cap can only be exceeded under the rarest of circumstances. For example, a claim involving a birth injury where the medical needs for the child eclipses one million dollars annually. Under such extreme circumstances, even Colorado law relents. However, for nearly all Colorado medical malpractice claims, regardless of how severe your injuries are, your relevant and unavoidable caps on damages are $300,000 for non-economic losses and an overall total cap on damages of one million dollars.

CONCLUSION:
Bringing a malpractice claim in Colorado is challenging compared to other jurisdictions because of the strict statutory rules and requirements associated with prosecuting such a claim. If you have been injured as a result of a doctor's negligent care and are seeking to bring a medical malpractice claim against that doctor, it is essential for you to hire an attorney who is familiar with the statutory requirements associated with bringing such a claim in Colorado.

Otherwise, your claim, and any hopes of recovery, will be quickly swallowed and decimated. At ANDERSON, HEMMAT & McQUINN, we are well-versed in the rule-driven pitfalls associated with medical malpractice claims in Colorado and are ready to help you navigate through this legal maze so that you can be compensated for any injuries that you have suffered as a result of a doctor's negligence. Accordingly, if you have been injured due to a doctor's negligence, please call and speak with one of attorneys today.


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