Emergency Room Medical Malpractice

No one ever wants to visit the hospital, but sometimes health circumstances require a trip to the emergency room. The Center for Disease Control and Prevention (CDC) reported that 119 million people visited emergency rooms nationwide in 2006. That figure amounts to approximately 40 visits per year for every 100 people. The Journal of the American Medical Association also reported that 225,000 people die every year due to medical malpractice, caused by unnecessary surgery, medication errors, infections, negative effects of drugs, and other errors. A portion of those deaths resulted from malpractice in an emergency room setting.

Emergency Room Malpractice
Emergency rooms are typically extremely busy, demanding environments. Patients often wait hours for treatment. The CDC reports that patients nationwide wait more than two hours for treatment (at the median). The CDC also notes that between 40-50% of hospitals emergency departments experience patient overcrowding. Furthermore, emergency room doctors and nurses typically work long hours and must treat a variety of medical issues, with limited support and resources. The CDC even reports that 64.7% of emergency departments use outside contractors to provide physicians. Under these challenging circumstances, medical professionals might commit one of the following forms of medical malpractice:

• Delay of important treatment because of overcrowding
• Failure to diagnose a life threatening infection or disease
• Failure to immediately treat life a threatening condition (such as stroke or heart attack)
• Misdiagnosis
• Errors in medication dosage
• Negligence
• Misreading of medical chart or test results
• Failure to conduct all necessary diagnostic tests
• Failure to consult appropriate specialists.

Example of Possible Emergency Room Malpractice
On September 14, 2008, Tabitha Mullings went to a New York emergency room suffering from what she thought was a kidney stone. After being examined, she left the hospital that day with pain killers. Mullings, however, returned to the hospital the next day and was diagnosed with a sepsis infection. This infection had blocked circulation to her hands, feet, and an eye. Doctors eventually had to amputate her hands and feet, and she lost sight in her right eye. As a result of this unfortunate turn of events, the New York Daily News reports that Mullings has filed a malpractice lawsuit, arguing that she was not properly screened when she first visited the hospital.

Responding to Malpractice
Victims of emergency room malpractice may be able to recover costs for:

• Rehabilitation
• Current and future medical bills
• Lost wages
• Long-term care
• Pain and suffering
• Loss of quality of life
• Loss of companionship (for the survivors of victim)

Victims of medical malpractice also must keep in mind the statute of limitations. Victims have two years from the date of the injury or from when the injury should have been discovered. No medical malpractice claim can be filed more than three years after the act that caused the injury.

Medical Malpractice Representation from Paulsen & Armitage Thank you for reading our blog. If you suspect that a loved one has passed away as a result of the negligence of a doctor, hospital, or other health care provider, please contact us for immediate assistance. Please note that our postings do not constitute legal advice and your comments will not be treated as confidential. If you wish to discuss your legal matter with us, please contact our office for a consultation.

Wrongful Death Lawsuit Involving Death of TV Spokeswoman

The husband of Leslie Fishbein, a Denver business woman, philanthropist, and TV personality, has filed a wrongful death lawsuit following her death on March 19, 2008. Ms. Fishbein, known for appearing in television ads for her company, Kacey Fine Furniture, had been in the hospital since March 4. She had sought treatment for chronic back pain that she suffered after a horseback fall in 2002. After being admitted to the hospital, doctors gave Ms. Fishbein an injection to counter the pain. She, however, suffered a serious reaction to the injection and fell into a coma.

Ms. Fishbein’s family named Dr. Daniel Brookoff, HCA-HealthOne, and HealthOne Clinic Services - Medical Specialties as defendants in the suit, according to reports in the Rocky Mountain News. The family alleges that Dr. Brookoff was providing trigger point injections into Ms. Fishbein’s back, with a drug called Marcaine. They allege that the doctor injected the drug into either Ms. Fishbein’s blood vessel or her spinal canal, which then caused cardiac arrest. Furthermore, they argue that Dr. Brookoff did not have the proper resuscitation medications or equipment to deal with Ms. Fishbein’s reaction to the injection.

What is a wrongful death claim and who can bring a wrongful death claim?
A wrongful death claim is a lawsuit that arises when an individual is killed as a result of the negligence of another person. A wrongful death lawsuit is different from other types of personal injury claims because the actual victim (the “decedent”) is not the person bringing the lawsuit; rather, it is the family members of the decedent or the representative for the decedent’s estate who are initiating the lawsuit.

Colorado’s wrongful death laws are found in Colorado Revised Statutes under C.R.S. 13-21-201 et.seq. (To view the applicable statutes, please visit Michie’s Legal Resources for Colorado and select the Colorado Revised Statutes Folder, then search for “Wrongful Death”). Pursuant to Colorado law, the surviving spouse has the exclusive ability to bring a claim during the first year after the death. After the first year, the surviving spouse and children then have standing to bring a claim. A wrongful death action has a two year statute of limitations in the State of Colorado.

What damages are available for a wrongful death lawsuit?
As Ms. Fishbein’s wrongful death case moves forward, a court may eventually determine that her husband is entitled to compensation under Colorado law. Some types of wrongful death damages face limits on the maximum amount of recovery possible. Colorado law does allow for monetary recovery for lost benefits, loss of support, as well as loss of love, care, companionship, comfort, assistance, or protection. Punitive damages may also be possible. In some cases, expenses associated with the death may also be recovered, such as funeral or medical expenses.



Medical Malpractice Representation from Paulsen & Armitage
Thank you for reading our blog. If you suspect that a loved one has passed away as a result of the negligence of a doctor, hospital, or other health care provider, please contact us for immediate assistance. Please note that our postings do not constitute legal advice and your comments will not be treated as confidential. If you wish to discuss your legal matter with us, please contact our office for a consultation.

Surgical Fires Lead to Disfigurement, Death

Medical Malpractice - Surgical Fires
Patients undergoing a routine surgery may believe that they are not at risk for experiencing any injury. Unfortunately, if the surgical team does not operate with the necessary care during any surgery, the possibility of a surgical fire does exist. If a surgical fire occurs, a routine surgery may result in permanent disfigurement and even death.

The Statistics of Surgical Fires
Surgical fires are a relatively rare occurrence given that 50 million surgeries are performed in the United States each year, but the fires that do occur can be devastating. Surgical fires were previously believed to affect between 50 and 100 patients annually. However, according to a September, 2008 report by Msnbc.com, it is estimated that between 550 and 650 patients per year are burned during surgery, with 20 to 30 of those individuals suffering serious burns and others dying as a result of their injuries.

The first-ever statistics tracking this worrisome issue were released by the Pennsylvania Patient Safety Reporting System. The data indicates that in Pennsylvania, one in every 87,646 operations in 2007 experienced a surgical fire. Thus, in 2007, 28 fires occurred during a surgery in the State of Pennsylvania. Based on these statistics, researchers are able to better estimate the number of incidents of surgical fires occurring nationwide. Research indicates that 65 percent of surgical fires result in injuries to the upper body or inside a patient’s airway, 25 percent result in injuries elsewhere on a patient’s body, and less than 10 percent of injuries occur inside the patient’s body.

How Surgical Fires Occur
Fires are possible during surgery because an operating room contains three elements that can combine to form a fire; heat, air, and fuel. Heat typically comes from the surgical tools used by surgeons to make incisions. Air is present due to the use of anesthesia on a patient during surgery. Fuel can come from the tiny hairs located on a patient’s head and neck, or surgical sponges. All of these elements may combine to form the conditions necessary to ignite a fire if the surgeon and anesthesiologist do not communicate effectively while conducting the surgery.

Preventing Surgical Fires
The primary step that can be taken to reduce the risk of a surgical fire is training the surgical staff at hospitals in the steps necessary to prevent a fire from occurring. Moreover, hospitals could hold fire drills to test staff preparedness. It is estimated that fewer than half of the nation’s hospitals hold drills to prevent and control fires. The American Society of Anesthesiologists now recommends regular drills as part of a comprehensive effort to prevent surgical flash fires from occurring.

An Example
For people directly affected by surgical fire, the results can be devastating. For example, an elderly patient in Maryland was injured after a cauterizing tool ignited a topical cleaner that had not been allowed to dry. The 2nd and 3rd degree burns to the patient’s face that resulted from the fire led to infections, kidney failure, and terrible pain for the patient. The patient died several years later having never fully recovered. Her estate sued the hospital and received a confidential settlement.

Seek Experienced Legal Representation.
Thank you for reading our blog. If you or a loved one have suffered a serious injury or death due to a surgical fire, contact us for immediate assistance. Please note that our postings do not constitute legal advice and your comments will not be treated as confidential. If you wish to discuss your legal matter with us, please contact our office for a consultation.

Medical Malpractice-Birth Injuries

The birth of a newborn infant is supposed to be a joyous occasion. Unfortunately, birth injuries strike at a time when the new parents are most vulnerable and are especially heartbreaking. Some birth injuries are caused by the negligence of a physician or other medical professional. When a medical professional is negligent, and their negligence results in an injury or death, this is defined as medical malpractice.

Birth Injuries Defined
A birth injury can happen any time during the birthing process. A baby is vulnerable to physical injury during pregnancy, delivery, and immediately after birth. Injury to the infant can be the result of the physician's failure to recognize complications during pregnancy or from the mishandling of the infant during delivery.

Colorado Statistics on Birth Defects
According to the Colorado Health Information Dataset from the Colorado Department of Public Health, about 4% of all births in Colorado have major congenital anomalies.

Common Types of Birth Injury
There are many types of birth injury. Some of the more common include the following:

• Fractures (often of the clavicle or collarbone)
  
• Subconjunctival hemorrhage (ruptures to the small blood vessels of the eye)
  
• Caput succedaneum (severe swelling of the soft tissues of the baby's scalp)
  
• Cephalohematoma (area of bleeding between the bone and its fibrous covering)
  
• Brachial palsy or Erb’s palsy (damage to the nerves running from the spinal cord through the arm, resulting in varying degrees of paralysis to one or both arms)
  
• Cerebral palsy (neurological disorder affecting body movement and coordination
  
• Shoulder dystocia (common with large babies, this is when a baby’s shoulders are impacted on the mother’s pubic bone during delivery, and if not immediately corrected, the baby’s head can be pulled away from its shoulders, resulting in nerve damage)
  
• Cranial nerve injury caused by compression by forceps
  
• Spinal cord injury caused by excessive rotation or torsion during delivery
  
• Laryngeal Nerve Injury resulting in vocal chord damage or paralysis

Causes of Birth Injury
There are many conditions that are associated with difficult births. A physician should be aware of these conditions. These conditions may call for particular procedures and should be identifiable to an obstetrician. If the obstetrician does not use reasonable care and fails to identify such a condition, he or she may be liable for damages if that failure leads to a birth injury. Some common conditions include the following:
Breech birth or other abnormal birthing positions
Large babies, especially those larger than 4,000 grams (8 lbs., 13 oz.)
Premature babies born earlier than 37 weeks in gestation
The mother's pelvis is too small for vaginal birth (Cephalopelvic Disproportion)
Difficult labor or birth (Dystocia)

Seek Experienced Legal Representation
In birth injury cases, it is important to act promptly, to take the necessary steps to preserve evidence, review the medical procedures in question, and to enable physicians or other expert witnesses to thoroughly evaluate the birth record and injuries. If your baby suffered injuries before, during, or after birth, contact us to schedule a confidential consultation.

Michael Skolnik Medical Transparency Act

The Colorado Board of Medical Examiners (the “Board”) has implemented the requirements of the Michael Skolnik Medical Transparency Act (the “Act”), which was enacted in 2007 by the Colorado General Assembly. The Act requires all physicians who submit an application for an initial license to practice medicine on or after January 1, 2008 to disclose certain information that is accessible to the public. Physicians who make an application to reinstate or reactivate an existing license are also subject to the Act’s requirements. Physicians who hold an active or inactive license issued by the Board or who applied for a license prior to January 1, 2008 are not required to comply with the Act until the May 31, 2009 license renewal period.

Information Available Under the Act
The Act requires basic personal information such as name, aliases, address and telephone number. The Act also requires the following information from the physician:

• Information on all medical licenses ever held
• Affiliations with hospitals and health care facilities
• Board certifications and specialties
• Current employment contracts
• Current ownership interests in businesses related to health services

In addition, the Act requires the following information about prior disciplinary proceedings, malpractice claims or loss of privileges or insurance:

• Public disciplinary actions against a medical license
• Agreements and Stipulations to temporarily cease medical practice
• Involuntary hospital or health care facility privileging actions
• Involuntary surrender of a DEA registration
• Criminal convictions or plea arrangements for felonies and crimes of moral turpitude
• Judgments, settlements and arbitration awards for medical malpractice claims
• Refusal by an insurance carrier to issue medical liability insurance

The Act also requires physicians to report a conviction for a crime within 30 days of the entry of the judgment and sentence for the crime, even if the conviction is subject to an appeal.

History Behind the Michael Skolnik Medical Transparency Act
The Act is named after Michael Skolnik, a 22 year-old who suffered brain trauma. A surgeon performed surgery on Skolnik, and Skolnik’s family alleged in their malpractice lawsuit that the surgeon jostled Skolnik’s brain during surgery. Skolnik required constant care, and died two years later, with $4.8 million in medical bills. Skolnik’s family later learned that the surgeon had only performed the procedure once before, and had a prior malpractice claim against him. Skolnik’s family contended that they would never have selected this surgeon had they known about his lack of experience and the prior malpractice claim.

Colorado is the 16th state to allow for the publicizing of malpractice claims against doctors. The Act extends beyond merely publicizing malpractice claims to provide consumers with information relevant to making an informed choice in selecting a physician. Please note that as of the date of this blog entry, only a limited number of physician’s profiles are available under the Act. Eventually, all physicians will have their profiles listed in compliance with the Act.

Medical Malpractice Claims Require Experienced Legal Counsel
Thank you for reading our blog. If you or a loved one have suffered a serious injury or death due to medical malpractice, contact us for immediate assistance. Please note that our postings do not constitute legal advice and your comments will not be treated as confidential. If you wish to discuss your legal matter with us, please contact our office for a consultation.

Colorado Governor Signs Two Important Bills Concerning Insurance

Colorado Governor Bill Ritter signed two important bills last month impacting consumers. Senate Bill 11 requires insurance companies to offer $5,000 of auto insurance medical payments for bodily injury, sickness or disease resulting from the ownership, maintenance or use of motor vehicles. Medical payment coverage or “med pay coverage” is a type of insurance provides coverage for the insured driver and his or her passengers for payment for injuries sustained, regardless of the fault of the driver. This type of coverage is also sometimes referred to “personal injury protection (PIP).” The amount of med-pay benefits is determined by the policy limits stated in the insurance policy declarations sheet for the person who purchased the coverage.

Insurance policies may be issued without medical payments coverage only if the insured rejects medical payments coverage in writing or using the same medium in which the application for the policy was taken (such as an online application over the internet). Insurance companies are required to maintain proof that the named insured rejected the medical payments coverage for at least three years after the insured declined the med pay coverage. The rejection will be deemed valid for all insureds under the policy, including resident relatives of the named insured and permitted drivers of the vehicle.

The new legislation limits the ability of an insurance company to be reimbursed out of a settlement or award for the med pay benefits it has paid. The law will become effective on January 1, 2009 and will apply to auto insurance policies issued, delivered or renewed after this date.

Governor Ritter also signed HB 1407, Concerning Strengthening Penalties for the Unreasonable Conduct of an Insurance Carrier, which is designed to protect consumers from insurance carriers who fail to honor their obligations to the policy holder, such as wrongfully delaying or denying claims. HB1407 increases the penalties the insurance commissioner may impose for a violation of any law, rule or order to up to $5,000 per act, or up to $50,000 aggregate annually, unless the carrier knew it was violating a law, rule or commissioner order, in which case the penalties increase to $50,000 per act, or $750,000 aggregate annually. The bill prohibits an insurer from unreasonably delaying or denying a claim for payment of benefits. The bill also creates a cause of action for a claimant who is unreasonably denied insurance benefits, and allows a claimant to recover two times the actual damages sustained and recovery of attorneys’ fees. The new law becomes effective for certain types of insurance disputes arising after August 5, 2008.

Thanks for reading our blog. If you have a comment or question, feel free to post it here, but keep in mind your posting will not be confidential. If you have been seriously injured and have questions concerning insurance coverage, contact our office for assistance.

Bicycle Accidents

The Denver Post reported this week that a bicycle rider was seriously injured in Jefferson County after she was struck from behind by a car driven by a man from Boulder. The injured woman was taken to St. Anthony Central Hospital for treatment. Bicycling has always been a popular form of transportation and recreation in Colorado. With gas prices rising to new highs, bicycling has increasingly become an alternative method of transportation. Unfortunately, increased ridership has also led to an increase in bicycle-related accidents.

According to the National Center for Injury Prevention and Control, each year more than 500,000 people are treated in emergency rooms in the U.S. and more than 700 people die as a result of bicycle-related injuries. Statistics cite four major causes of bike accidents: 1) Rider Error; 2) Fault of a Motorist; 3) Product Defects; and 4) Roadway Defects.

Rider Error
Rider Error is a common defense to any bicycle accident; the defense will simply assert that the rider caused the accident and should therefore be responsible for any injuries or damages arising from the accident. Careless conduct on the part of the cyclist is frequently cited as a contributing factor in an accident. Excessive speed, unsafe lane changes, cutting in front of cars and other reckless maneuvers are all examples of careless conduct.

Fault of the Motorist
Collisions with cars account for only one-third of all bicycle accidents, however, they account for the majority of serious injuries and deaths. Drunk driving, speeding, failure to yield, inattentiveness and unsafe turns are all frequent causes of collisions between cars and bicycles. Since the cyclist may be too injured to speak to any officer responding to the scene of the accident, the police report may be biased in favor of the driver. It is important to obtain a copy of any police reports as soon as possible to correct any inaccuracies before the report may be used against you.

Product Defects
As with any other type of product, bikes may have defects attributable to poor design, improper manufacturing techniques, faulty components or assembly, or failure to properly instruct or warn. If you suspect that product failure caused or contributed to an accident, it is critical to keep the bicycle and all component parts for examination by an expert. The bike and its parts must be kept in substantially the same condition as they existed at the time of the accident; do not send your bike in for repairs or to the manufacturer for inspection until your lawyer and experts perform their own examination and inspection. If the bike or its components are repaired or lost, it may be difficult or even impossible to prove a case of product defect.

Roadway Defect
In any bicycle accident, it is important to examine the location of the accident to determine if a roadway defect caused or contributed to the accident. Since most roadways are under the control of a city, county or the State of Colorado, you have a shorter period of time in which to file a lawsuit, since personal injury claims against government entities generally must be filed within six months of the injury. Claims against government entities are governed by statute, and require special expertise.

Thanks for reading our blog. If you have been injured in a bike accident, contact Paulsen & Armitage, P.C. at 303-426-7336 for a free, confidential consultation.

Medical Malpractice Bill Rejected By House Judiciary Committee

A couple of postings ago we discussed Senate Bill (SB) 164. The bill would have increased the cap on non-economic damages caused by medical negligence from $366,250 to $468,010. It would also have recategorized physical impairment and disfigurement as non-economic damages but would have left the existing total cap of $1,000,000 in place. The bill is now effectively dead. The House Judiciary Committee voted on April 29th to strike down the bill 7-2.

The Insurance Accountability Act of 2008
After some debate in the House on April 29, 2008, House Bill (HB) 1407, also known as The Insurance Accountability Act of 2008, was given preliminary approval. The bill is also sponsored by House Speaker Andrew Romanoff, D-Denver. The bill's counterpart in the Senate is sponsored by Senate Majority Leader Ken Gordon, D-Denver. The purpose of the bill is to address the problem consumers have with insurance carriers that perpetuate a cycle of delays, denials, and appeals, so that they can get through the insurance claim process with quickly and painlessly.

HB 1407 helps consumers with the following provisions:

• Increases the penalties that the insurance commissioner may impose for the violation of any law, rule, or order of the commissioner.
• Prohibits an insurer from unreasonably delaying or denying a claim for payment of benefits by a claimant.
• Creates a cause of action for a claimant who is unreasonably denied insurance benefits.
• Allows the claimant to recover two times the actual damages sustained.

The penalty that the insurance commissioner currently is able to impose for insurance company violations is $1,000 for every act in violation of any law, rule or prior lawful order of the commissioner. The penalty cannot exceed an aggregate of $10,000. If the company knew or reasonably should have known its actions to be in violation of existing statute, the limit is $10,000 per act and an aggregate of $150,000 for any six-month period. The bill would revise the law to increase the limits to $3,000 for unknowing individual acts ($30,000 aggregate), and if the insurer knowingly violates the law, the penalty's limit is increased to $30,000 per act with a $750,000 annual limit.

The new bill also adds language to the current statute that prohibits “a person engaged in the business of insurance” from unreasonably delaying or denying payment of a claim. The bill also increases the penalty for violation of the prompt payment provision from 10% of the claim to 20%. The 20% penalty will also now apply to claims that are found to be unreasonable pursuant to a civil action.

The bill also creates a new private cause of action for consumers who are victims of insurance companies who violate the “no unreasonable delays” provisions. Such consumers can seek a remedy by filing suit in a Colorado District Court to recover “reasonable attorney fees and court costs and two times the covered benefit.”

The modifications made by HB 1407 add some teeth to existing state law to keep insurance companies from disregarding the needs of their clients. The increased penalties are modest but should make insurance carriers pay more attention to claims filed by Colorado consumers. Individual claimants are not the only people affected by these unreasonable delays. Many times a delay in payment must be absorbed by the medical professional providing treatment.

Thank you for reading our blog. If you feel that your insurance carrier is denied a claim in bad faith or is unreasonably delaying a decision or payment, you should contact an experienced attorney. If you have a question or comment, please reply to this blog or send us an e-mail.

Federal Preemption of State Product Liability Law Cuts Both Ways

One current hot topic in product liability law is the scope of federal preemption of state laws. The doctrine of preemption holds that a valid federal law may expressly or impliedly preempt state or local law. Congress may regulate all aspects of interstate commerce, including products produced by the pharmaceutical industry. In short, if Congress has not legislated on the matter, a state or local government may regulate aspects of interstate commerce. If Congress has legislated on the matter, then federal law is said to “preempt” or take precedence over, the state law. Recent cases involving federal preemption focused on whether FDA approval schemes can preempt state products liability actions.

Riegel v. Medtronic, Inc.
Recently, the Supreme Court held in Riegel v. Medtronic, Inc. that the express preemption provision in the Medical Device Amendments of 1976 allows U.S Food and Drug Administration (FDA) premarket approval to preempt state tort law in product liability claims involving Class III medical devices. The Medical Device Amendments prohibit a state from imposing requirements relating to the “safety or effectiveness” of a device that differ from requirements established by the FDA.

While undergoing an angioplasty procedure in 1996, Charles Riegel died because a catheter manufactured by Medtronic, Inc. ruptured during the procedure. The FDA approved label indicated that the device was contraindicated for patients, like Mr. Riegel, who suffered from calcified stenoses. The plaintiff claimed that Medtronic failed to warn about the risks of using the catheter on patients with calcified stenoses. However, because the device was used in a manner that was not in compliance with the FDA approved design, the Supreme Court, by an 8-1 vote, found that federal law preempted state law in this case. This narrow decision addresses Class III medical devices only.

Warner Lambert v. Kent
Another recent case went against the manufacturer. The Supreme Court let a lower court decision stand with a 4 to 4 vote (Chief Justice Roberts recused himself). The lower court decision held that federal law preempted a Michigan state law that generally grants immunity to drug manufacturers in product liability and negligence actions for FDA approved drugs. Because of the deadlock, the Supreme Court offered no guidance as to their positions and simply reported the result. Thus the state action was allowed to proceed.

Wyeth v. Levine
With no real guidance from Warner Lambert, and only narrow guidance from Medtronic, product liability attorneys are closely watching a case on the fall Supreme Court docket—Wyeth v. Levine. This case should address the scope of federal preemption of products approved by the FDA (except those covered in Medtronic).

The issue in Wyeth v. Levine centers on a state failure-to-warn action. In this case, the plaintiff argues that the FDA-approved label does not set a standard but is merely a minimum requirement and that the label, nevertheless, should have been stronger and more specific.

Unlike Medtronic, the Food, Drug, and Cosmetic Act does not contain an express preemption provision. Thus the Supreme Court cannot base its decision on such a provision and must decide whether the FDA regulatory scheme itself preempts state law.

Thank you for reading our blog. Personal injury suffered due to product liability can be devastating. If you or a loved one has been seriously injured due to a defective product, contact us for immediate assistance. Please note that our postings do not constitute legal advice and your comments will not be treated as confidential. If you wish to discuss your legal matter with us, please contact our office for a consultation.

Colorado’s Physician Apology Law

Several states have passed laws that allow doctors and other health care providers to apologize to a patient or a patient’s family for medical errors. These laws make doctor apologies inadmissible in court to prove liability against the doctor or health care provider.

Advocates of physician apologies contend that many malpractice lawsuits can be avoided if the doctor or health care provider apologizes and lets the patient or loved one know the details of what went wrong. Some health care providers have implemented similar policies with some encouraging results. For example, the University of Michigan Health System in Ann Arbor has a policy of full disclosure and offers apologies without the benefit of a state Physician Apology Statute. Since the program has been in effect, claims against them went down from 262 in 2001 to under 100 in 2005 despite an increase in clinical activity. Administrators claim the program works because, along with an apology and disclosure, they offer the aggrieved patient a reasonable settlement to compensate them for any losses.

Like many other states, Colorado has passed a physician apology statute. Colorado’s law is by far the broadest in the nation. Whereas most states limit the apologies to expressions of sympathy, SECTION 1, Article 25 of Title 13 of Colorado Revised Statutes also protects admissions of liability and guilt. It protects “any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence…” In effect, a negligent doctor can apologize, describe in detail the mistakes he made, and the victim would not be able to use that admission in court.

Texas also has a physician apology statute, but it is much narrower than Colorado’s. Like Colorado's statute, Texas Civil Practice & Remedies Code Sec 18.061(a)(1) bars doctor's statements that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident.” However, unlike Colorado's law, it does not bar a doctor's admission of liability or fault.

By way of example, let's imagine that a doctor makes the following statement after something goes wrong during an operation: “I am sorry for your pain. I mistakenly failed to close-up properly and that failure caused your pain and suffering.” In Texas, only the first part of the statement (“I am sorry...”) would not be admissible in court. The second part of the statement (“that failure caused...”) would be admissible to prove the doctor's liability. On the other hand, in Colorado, the entire statement would not be admissible to prove liability in any malpractice suit against the doctor or hospital.

Some critics of the Colorado statute feel that the policy is unfair and that patients should not have to give up their right to sue just so a doctor can say, “I’m sorry.” Proponents, on the other hand, believe that the statute protects more than a mere apology. Many patients and families file suit as a last resort to find out information about what happened. Because doctors have been advised to say nothing to mitigate the risk of a lawsuit, the patient never got a satisfactory explanation of what went wrong. Thus proponents believe that the statute offers a sense of closure for the patients and families without resorting to litigation.

Thank you for reading our blog. Injuries suffered due to medical malpractice can be devastating. If you or a loved one has been seriously injured due to medical malpractice, contact us for immediate assistance. If you have a question or comment, please reply to this blog or send us an e-mail.

Senate Bill Proposes Increased Cap in Medical Malpractice Damages

Senate Bill (SB) 164 was sponsored by Senate President Peter Groff (D-Denver) and Assistant Majority Leader Terrance Carroll (D-Denver). It would increase the current cap on non-economic damages caused by medical negligence from $300,000 to $366,250, mirroring the cap on negligence claims that do not arise from medical negligence. Originally enacted under the Health Care Availability Act in 1988, caps on medical negligence have not been adjusted for inflation and have remained unchanged since 2003.

Currently there is a total cap of $1,000,000 on medical negligence/malpractice cases. Under SB 164, this cap would remain in place. Also under the current law, a judge can allow a larger damage award in extraordinary cases. Current law categorizes physical impairment and disfigurement as noneconomic damages, which are limited by the current cap. However, the bill will re-categorize them as economic damages. Noneconomic damages are traditionally non-quantifiable injuries such as pain and suffering, loss of companionship, and loss of consortium (love of a spouse).

SB 164 does not make any drastic changes, and the modest changes it does make will ensure that medical negligence victims are compensated fairly. Even so, special interests, lead by the insurance companies, have mounted a concerted effort to prevent this bill from becoming law. They claim that these small changes will somehow cause medical malpractice insurance rates to “skyrocket” and cause doctors to practice what they refer to as “defensive medicine” by performing more tests.

If more tests will prevent an innocent patient from loosing an arm, a leg, or the ability to see, then more doctors should be practicing defensive medicine. The underlying premise of our tort system is that a person injured due to another’s intentional act or negligence should be made whole. It only makes sense that the negligent party should be the one to foot the bill.

The special interest groups have portrayed victims of medical negligence as greedy opportunists seeking to capitalize off of their injury. Victims of medical negligence are people who have suffered injury through no fault of their own. They are people with injuries who deserve compensation. Although mere dollars cannot adequately compensate one for the loss of a limb or the death of a loved one, that is the only remedy the law allows.

The bill is currently on hold in the Colorado House of Representatives. After a contentious hearing on Wednesday March 18, the House Judiciary Committee decided to delay the vote to get more input from the public. Rep. Cheri Jahn (D-Wheat Ridge) may try to amend the bill to make it more acceptable to opponents.

Thank you for reading our blog. Personal injury suffered due to medical malpractice can be devastating. If you or a loved one have suffered a serious injury or death due to medical malpractice, contact us for a confidential consultation. If you have a question or comment, please reply to this blog or send us an e-mail.