Change to Colorado Court Rules Could Improve the Lives of Medical Malpractice Victims

Legal proceedings in the Colorado courts are governed by the Colorado Rules of Civil Procedure (CRCP). Under current rules, the losing party in a civil lawsuit can be required to pay the prevailing party's costs of litigation, other than attorney fees. Even without attorney fees, the amount of other litigation costs can be quite high, particularly in the case of medical malpractice, where the parties must hire doctors as expert witnesses to provide medical expert testimony about the injury and the circumstances surrounding it. The specter of having to pay the other party's costs has caused many victims of malpractice to think twice about embarking on a lawsuit. Even when they do, the rule provides a strong incentive to settle the case for less than it is worth, rather than go to court and possibly lose and be slapped with a bill from the other side for tens of thousands of dollars or more.

This situation was experienced recently by a Boulder family with a child born with Cerebral Palsy, a life-long debilitating condition which may occur during fetal development or during labor. The family lost their lawsuit and was ordered to pay $340,000 in costs, forcing the family into bankruptcy.

A small but important change to the CRCP could change that. The proposed change to CRCP Rule 54(d)(1) (see the analogous Federal rule here) would allow the court to consider the economic circumstances of the losing party before ordering them to pay the costs of the prevailing party. A change like this could save families from bankruptcy and take away some of the disincentive to litigation for low-income individuals or families involved in expensive litigation.