Colorado Personal Injury Law Blog

Communication Failures among Health Care Professionals May Constitute Medical Malpractice

2012-01-27T12:39:00.000-08:00

As reported last month by MSNBC, a communication breakdown between a doctor and a testing laboratory resulted in a one-year delayed cancer diagnosis for a woman in Virginia Beach, Virginia. When she didn't hear anything from her gynecologist after an annual exam and mammogram, Peggy Kidwell assumed she was in good health. However, when she went back the next year for her exam, her doctor did not have record of her mammogram screening results from the prior check-up. When the tests were finally located (on the desk of another doctor), it was discovered that Ms. Kidwell had undiagnosed breast cancer.

By the time Ms. Kidwell underwent treatment, the cancer had spread to her chest wall. She had a lumpectomy, chemotherapy, radiation, and eventually a mastectomy. Ms. Kidwell filed a medical malpractice lawsuit in a case that was eventually settled and sealed, but we may conjecture that her claim was at least partially based on her doctor's failure to follow up on the mammogram by reaching out to her or to the lab.

Examples of Communication Failures in the Health Care Profession

According to the U.S. Department of Health & Human Services, communication problems are the most common cause of medical errors, as miscommunication can result in many different types of errors and involve any and all members of a health care team. The following scenarios all represent failures in communication:

Miscommunication within an office practice

Failure to pass information along to health care providers working different shifts

Lack of communication between primary care physicians and emergency room personnel

Lack of communication between physicians and ancillary services, such as pharmacies, laboratories, and imaging centers

Lack of communication between patient services in hospitals and nursing homes

Poorly documented or lost information on laboratory results, diagnostic testing, or medication information

Failure to provide patients with adequate information or resources to help in the recovery process

When critical information is not properly communicated among health care providers, a patient is vulnerable to misdiagnosis, delayed diagnosis, medication errors, and even surgical mistakes, ranging from scheduling conflicts to operating on a wrong body part. In a recent study published by the American College of Radiology (ACR), researchers found that "test result communication failures account for an increasing proportion of medical malpractice awards."

Experienced Medical Malpractice Lawyers

If you suspect that you or a loved one received inferior medical treatment and suffered harm due to a communication error, mistake, or oversight made by a doctor, nurse, clinician, hospital, or other health care provider, contact Paulsen & Armitage, LLC. We are experienced medical malpractice attorneys based in Denver, Colorado.

Is Wisdom Tooth Removal Surgery an Unnecessary Risk?

2011-12-29T15:38:00.000-08:00

In recent weeks, several news sources have reported the death of a 17-year-old Maryland girl who died from hypoxia (oxygen deprivation) during a routine wisdom teeth extraction. Her parents filed a medical malpractice lawsuit this month, which brought the case to the attention of consumers, media, and dental industry professionals. The tragedy has caused many to question the necessity of wisdom teeth removal, an elective surgery that may lead to serious health consequences with no significant health benefit.

Girl's Death Gives Rise to Bigger Questions for the Dental Industry

In April, Jenny Olenick was to have her wisdom teeth removed, a surgery undergone by five million teens and adults each year. However, the procedure went fatally wrong when her heart rate slowed to a "panic level" and she began losing oxygen after being anesthetized. Her parents' malpractice lawsuit alleges that the dentist and anesthesiologist were negligent in monitoring Ms. Olenick's breathing and oxygenation and in failing to resuscitate her once her heart rate and oxygen level dropped.

Ms. Olenick's tragedy has prompted many people to wonder why dentists almost unanimously encourage wisdom teeth removal when the teeth have not actually caused any problems for the individual, but the surgery poses real risks.

The American Association of Oral and Maxillofacial Surgeons strongly recommends that young adults have their wisdom teeth removed to "prevent future problems and to ensure optimal healing." But some dentists claim the science support prophylactic extraction is thin, and that profit is the real reason so many wisdom teeth removals are performed. As reported by Huffpost Healthy Living, dental consultant Jay Friedman wrote in the American Journal of Public Health, "Third-molar surgery is a multibillion-dollar industry that generates significant income for the dental profession. It is driven by misinformation and myths that have been exposed before but that continue to be promulgated by the profession."

According to the report, American dentists and oral surgeons pull 10 million wisdom teeth every year, an effort that costs more than $3 billion and leads to 11 million days of postoperative discomfort. Mr. Friedman goes on to say "At least two thirds of these extractions, associated costs, and injuries are unnecessary, constituting a silent epidemic of [physician-induced] injury that afflicts tens of thousands of people with lifelong discomfort and disability."

The dangers associated with wisdom teeth removal will likely receive even more attention in the coming months. ABC News affiliate WSBTV has reported that 14-year-old Ben Ellis of Gilmer County, Georgia was found dead on December 8 after undergoing wisdom tooth surgery the day before. His case is still under investigation.

Experienced Medical Malpractice Lawyers

If you ever believe that your health or the health of a loved one was compromised by incompetence or negligence on the part of a dentist, doctor, nurse, hospital, or other health care professional, contact Paulsen & Armitage, LLC in Denver for a free consultation with an experienced Colorado medical malpractice attorney.

Cerebral Palsy Resulting From a Health Care Professional's Mistake or Negligence

2011-11-30T14:46:00.000-08:00

Each year, approximately 10,000 babies are affected by cerebral palsy. During the early months of life, parents may notice their child's inability to hold up his or her head, or the child may have stiff legs that cross when he or she is picked up. From six to 12 months of age, there are other warning signs that something may be wrong, such as the child will only reach with one hand while the other remains clinched, the child crawls abnormally using only one side of the body, or the child is unable to crawl or stand on their own. Despite these red flags, cerebral palsy is generally not diagnosed until the child is two to three years of age.

The affects of cerebral palsy vary from individual to individual, but most people with cerebral palsy have difficulty controlling their movements. Some individuals also experience seizures and mental retardation, while others have normal intellect.

Cerebral Palsy Resulting from Birth Asphyxia

In some cases, cerebral palsy is the result of natural processes, such as maternal infections, blood disorders, or severe jaundice. These are all processes that can occur naturally and may not be preventable. Other cases, however, may be the result of medical malpractice. While some reports indicate that a lack of oxygen to the fetus is only responsible for a small number of cerebral palsy cases, birth asphyxia is cited as a known cause of cerebral palsy in children. Birth asphyxia may occur when emergencies arise during labor and delivery for which the physicians and nurses do not respond in an appropriate or timely manner, causing injury and oxygen deprivation.

In the case that a doctor's mistakes or negligence caused a child to be deprived of oxygen before, during, or after birth, cerebral palsy is a devastating result. The child faces a lifetime of physical and/or mental limitations that could have been prevented if appropriate medical treatment had been administered. Not only is the child's quality of life impacted and his or her future compromised, but the financial burden to the family and caretakers of children affected by cerebral palsy can be overwhelming. It has been estimated that the lifetime cost of caring for children with cerebral palsy is approximately $500,000.

Seek Experienced, Compassionate Representation

Parents of children born with cerebral palsy should be aware that their child's condition may be the result of medical malpractice. If you believe that a health care provider caused your child's birth injury, please contact the Law Offices of Paulsen & Armitage for a free initial consultation.

Selecting a Doctor

2011-09-29T15:13:00.000-07:00

The Colorado medical malpractice lawyers at Paulsen & Armitage, LLC know that most medical mistakes are avoidable, and that most mistakes are the result of negligence, carelessness, or incompetence on the part of the doctor or other medical professional. While not all mistakes are avoidable, it is essential that you choose a doctor who is not only competent to treat you but exercises the proper level of care when doing so. How do you know if you are choosing the right doctor? The following article provides some tips and suggestions that may help you find a good doctor that is right for you.

Interview Your Potential Doctor

When selecting a doctor, you are basically hiring a professional to provide you with a service, only in this case the service is very personal and very important. Whether you are finding a doctor from the internet, one from a list of providers in your HMO or PPO network, or based on a referral from a friend, take the time to meet with the doctor before committing to a long-term relationship. After you have conducted some basic research, schedule a brief consultation with the doctor. This can be done as part of a physical examination or as a separate visit, depending upon your comfort level and immediate needs.

To prepare for your visit, take some preliminary steps. You can search beforehand to determine if the doctor is currently licensed or has ever been subject to discipline. You will also want to check your insurance policy, and draw up a list of questions to bring to the visit. These steps are described in more detail below.

Research the Doctor’s Licensing and Discipline History

You will want to know whether your doctor:

is currently licensed, and how long the doctor has been licensed

has any disciplinary charges (accusations) pending before the Board

has any history of past disciplinary action

has any criminal convictions relevant to the doctor's professional practice or ethical conduct

has any malpractice judgments entered against him or her

The Colorado Medical Board licenses and disciplines all medical doctors in the state, and their website can provide you with public-record information on Colorado-licensed physicians. With a simple internet search through the Automated Licensure Information System (ALISON), you can find out if a doctor's license is current and renewed, and whether any Board or administrative-related actions have been taken against the doctor.

We hope this information is helpful to you. If you ever believe that your health was compromised by incompetence or negligence on the part of a doctor, nurse, hospital, or other health care professional, c for a free consultation with an experienced Colorado medical malpractice attorney.

Medical Malpractice and Unnecessary Tests

2011-08-31T13:06:00.000-07:00

Search for "medical malpractice" and "unnecessary tests" on the Internet, and most of the results will talk about how fears of being sued for medical malpractice cause doctors to order unnecessary tests, which increases costs to the overall health care system and is a reason why we should have tort reform. Well, it turns out that there is another reason why doctors may order unnecessary tests: it's profitable. Unfortunately, a test that is not helpful to the patient may actually be harmful, and ordering or administering unnecessary tests can itself be a form of medical malpractice.

This issue is a hot topic in Colorado and across the nation. The September issue of Consumer Reports, in an article titled The Business of Healing Arts, cites increasing calls from physicians themselves arguing against the overuse of testing, and even treatment, in cardiac cases where the facts do not support such an approach. We all want our doctors to have access to the latest and best high-tech diagnostic equipment, and to use it whenever necessary. But when doctors and hospitals acquire this equipment, the only way they can recoup their costs is by ordering tests that patients and their insurance companies pay for. The profit motive is there; unfortunately it does not always seem to be subordinate to the Hippocratic Oath.

The Consumer Reports article was cited in a similar report by the National Journal online (Consumers Get Unnecessary Heart Tests: Consumer Reports, August 2, 2011), citing unnecessary testing such as EKGs ($50), Stress Tests ($250), and angiograms ($5,000), not to mention the next step - unnecessary treatment such as angioplasty ($20,000 and up). Here in Colorado, the Denver edition of the Huffington Post reported on the recent fine levied against a provider of CT scans (Heart Check America Hit With Largest Malpractice Fine In Colorado's Radiation Department History, August 8, 2011). Heart Check America was fined $3.2 million by the Colorado Department of Public Health and Environment for performing CT scans that were not ordered by a state-licensed physician.

X-rays and CT scans expose patients to high levels of radiation. Other tests can produce harmful results in other ways. For example, a cardiac stress test can itself induce a heart attack, and radioactive and known carcinogens are often used in conjunction with the test (nuclear stress test). It is true that missing a diagnosis or failing to order a test may be evidence of medical malpractice. But ordering an unnecessary test, whether motivated by profit or the practice of "defensive medicine," also falls below the expected standard of care, and doctors should be held liable for any harm that results. If you believe you have been harmed from unnecessary diagnostic testing or medical treatment, contact the medical malpractice lawyers at Paulsen & Armitage, LLC.

Medical Malpractice Can Cause Devastating Birth Defects

2011-07-29T15:06:00.000-07:00

A delivery that went wrong at a Colorado Springs hospital in 2007 left a child with severe and permanent brain damage and a condition known as spastic quadriplegia. She will need a high degree of supervision and care for the rest of her life. A lawsuit filed last year by the child's mother was settled early this year for $700,000. The lawsuit alleged that malpractice on the part of the nursing staff and physician led to the child's injuries by, among other things, failing to heed the signals from the fetal heart monitor which indicated the baby was in distress during labor.

Statute of Limitations Works for Child, But Not for Mother

In general, a medical malpractice action must be brought within two years from the date of the injury, although there are exceptions when the injury is not immediately apparent and is discovered later. Injured minors, however, have until their eighth birthday to bring suit, if they were injured before they were six years old. While the mother was able to recover a substantial settlement on behalf of her child, she waited too long to file a claim for herself and was barred from recovering for her own injuries. It is recommended to always contact an attorney as soon as possible after an injury to avoid such a result.

A Lifetime of Costs

The additional lifetime costs for a child born with such severe challenges will reach into the several millions of dollars. A payment of $700,000 can itself grow into the millions over time if properly invested. Hopefully the income generated will keep pace with the expenses as they are incurred.

Undocumented Immigrants Have Access to Courts

The mother of the injured child is an undocumented immigrant. The child, being born in America, is a U.S. Citizen. Regardless of the political debate surrounding immigration, it is the law of the land that undocumented immigrants have access to the courts and can sue for personal injuries, including medical malpractice that causes severe and permanent brain damage in their children.

If you or your child has been injured during a birth or other medical procedure, contact an attorney as soon as possible to make sure you are compensated in the case of professional negligence. In Colorado, contact the personal injury and medical malpractice lawyers at Paulsen & Armitage, LLC.

Medical Malpractice - It's Not Just for Doctors Anymore

2011-06-30T16:28:00.000-07:00

A $3 million judgment was recently awarded to a family of a ten-year old girl born with multiple disabilities. The judgment was awarded against the midwife who oversaw and assisted with the birth at a Maine medical center. In California, an anesthesiologist was found liable for causing a brain injury due to lack of oxygen, resulting in a settlement with the anesthesiologist and a $2.25 million jury award against the medical center where the procedure was performed.

When we think of medical malpractice, we may think of doctors and surgeons in particular, but the concept of liability actually extends to just about any health care practitioner who violates an applicable standard of care. Besides medical doctors, we have midwives and anesthesiologists, as described above. Of course, an anesthesiologist is actually an M.D., as is a psychiatrist, who as a doctor can prescribe medicine and also be liable for medical malpractice. Who else can be held liable for medical malpractice?

Nurses, Nurse Practitioners, Physician's Assistants - All of these positions are licensed by the state, and all of these practitioners can be liable for failing to adhere to the appropriate standard of care. Lab technicians who perform tests incorrectly or report the results inaccurately may also be liable for the damage they cause.

Pharmacists - Doctors can be liable for prescribing the wrong medicine or the wrong dosage. A pharmacist could be liable for mis-filling the prescription or typing out the label incorrectly, leading to an improper dosage.

Hospitals - ambulatory, urgent care, treatment center. In general, employers are liable for the negligence of their employees. In the case of doctors and surgeons, however, it is not always clear whether the doctor was an employee of the hospital or an independent contractor with privileges to practice at the facility. In addition to the negligence of employees, another question is whether the hospital itself had adequate policies and procedures in place and adequately trained and supervised employees.

HMOs - Health Maintenance Organizations that refuse to pay for diagnostic tests or treatment out of cost concerns may be liable for injuries that result.

The hallmark of medical malpractice is professional negligence by a health care provider which deviates from the acceptable standard or level of care in the community. If your health has been compromised by anyone in the health care field, you should contact an experienced medical malpractice attorney to discuss the circumstances surrounding your case. In Colorado, contact Paulsen & Armitage, LLC.

Judge Approves $7 Million Settlement for Failure to Provide Genetic Counseling

2011-05-31T14:33:00.000-07:00

Earlier this month a judge in Massachusetts approved a $7 million settlement for a family who claimed medical negligence in the birth of their daughter. The child was born with a rare genetic disorder called cri-du-chat syndrome, which resulted in severe facial abnormalities and intellectual/cognitive impairment. The disorder is caused by a chromosomal abnormality which was readily detectable by genetic testing. Had the abnormality been discovered early enough, the family could have made an informed decision about whether to proceed with or terminate the pregnancy.

Definition of Genetic Counseling

Genetic counseling is defined as the communication by one or more specially trained and skilled individuals to a counselee and his or her family about the diagnosis, genetic mechanism, prognosis, and alternate courses of action available to manage a genetically determined disorder. The Council on Scientific Affairs of the American Medical Association has identified the following indications for referring a patient to a genetic counselor:

Genetic or congenital anomaly in a family member;
Family history of an inherited disorder;
Abnormal development in a child;
Mental retardation in a child;
Pregnancy in a woman older than age 35;
Certain ethnic backgrounds with a higher rate of genetic abnormality;
Drug use or long-term exposure to certain toxins;
Three or more abortions, early infant death, or both; and
Infertility.

Failing to refer a patient to a genetic counselor, or a genetic counselor’s failure to correctly diagnose a genetic condition that later manifests itself when the baby is born or to inform a patient of the consequences of being a carrier of a genetic defect, are all grounds for potential liability. Many of the children born with these conditions bear a lifetime of expensive care and continued medical treatment. The financial recovery from a medical negligence lawsuit can help to ease the financial burden on the family and also serve to protect others from receiving similar substandard care.

Experienced Colorado Medical Malpractice Attorneys
If you are the parent of a child born with a genetic disorder, including Tay-Sach’s disease, sickle-cell anemia, phenylketonuria (PKU), or any other genetic disease, and you suspect that you were not given proper genetic counseling, you may have a cause of action against your doctor and other medical providers. For advice and assistance from experienced Colorado medical malpractice attorneys, please contact Paulsen & Armitage, LLC.

Fred Thompson Speaks Out Against Attempts to Cap Damages in Tennessee

2011-04-29T10:28:00.000-07:00

He has played a U.S. President on film and a U.S. Senator in real life, and made a serious run for the Presidency in 2008. Now actor and statesman Fred Thompson has come out in opposition of Tennessee's HB 2008, a bill which would impose damages caps and make other "reforms" at the expense of injured persons and their families.

HB 2008 would place a limit on noneconomic damages of $750,000 per occurrence in medical malpractice cases. This means that even if multiple people were injured - a mother and child in a birth injury, for instance - no more than $750,000 total could be awarded for pain and suffering, emotional distress, and similar damages. In other personal injury cases, the cap is placed at $750,000 per plaintiff. HB 2008 also caps punitive damages to the greater of $500,000 or double the amount of compensatory damages awarded. The cap would be eliminated altogether where the defendant committed a felony or was under the influence of alcohol or illegal drugs at the time of the injury.

This bill would also disallow compensatory damages to the extent that charges have been discounted by an insurer, an issue that was brought forward in Colorado this year but died in committee. (See last month's blog)

An amendment to the bill would raise the cap to $1.25 million in some cases, including certain spinal cord injury, amputation, burn injuries, or the death of a parent leaving minor children.

Thompson is lobbying for changes in the bill to make the access to justice broader for more people, rather than narrower, as the bill would accomplish. For instance, Thompson would like to see brain injuries added to the list of cases in which the cap is raised. As an attorney who handled personal injury claims early in his legal career, Thompson knows that damages in individual cases of medical malpractice or other misconduct can easily exceed a blanket cap that applies to all.

As of this writing, HB 2008 is awaiting a vote in the Senate Judiciary Subcommittee. At Paulsen & Armitage, LLC, we monitor developments in medical malpractice law in Colorado and nationwide to always stay on the leading edge of trends and changes in the law, in order to help fulfill our mission of providing our clients with the highest quality legal service. If you or a loved one has been injured in a case involving medical malpractice or other personal injury, contact Paulsen & Armitage, LLC.

Court Ruling on Personal Injury Damages Still Stands -- For Now

2011-03-31T16:45:00.000-07:00

A Legislative attempt to overturn a decision of the Colorado Supreme Court has died in committee, ending attempts, at least for now, to decrease the amount an injured plaintiff may recover in a personal injury lawsuit.

The Bill was HB 1106, and the Supreme Court decision was Volunteers of America v. Gardenswartz, a decision handed down in November 2010. Gardenswartz considered whether an injured plaintiff was entitled to recover damages for the full amount of medical expenses incurred, or whether the plaintiff's recovery should be limited to any discounted amount actually paid by a third-party insurance company. The court held that in accordance with Colorado's collateral source rule (C.R.S. 13-21-111.6), the plaintiff is entitled to recover in full.

Under the collateral source rule, the jury is not to consider other sources of payment, such as health insurance, to which the plaintiff may be entitled in determining the amount of damages to award. After that determination has been made, however, the court is to reduce the verdict by the amount received from that collateral source. The statute goes on, however, to provide an exception for benefits paid as a result of a contract entered into between the plaintiff and the third party. This exception allows the plaintiff to receive insurance benefits without reducing the liability of the defendant in a civil case.

The point of the collateral source rule is to make sure that a guilty, negligent defendant is not allowed to benefit from the fact that the plaintiff had insurance but instead should be liable for the entire amount of damages caused. Likewise, the plaintiff should not be penalized for purchasing insurance but instead should be entitled to a full recovery of damages.

The intent of HB 1106 was to make clear that the common law collateral source rule is abrogated (abolished) in Colorado and to overturn Gardenswartz so that a plaintiff cannot recover compensatory damage awards for medical expenses that exceed the amount ultimately accepted by the health care provider.

HB 1106 was introduced in the House on January 21 and assigned to the Judiciary Committee. It passed the House and was introduced into the Senate on March 25, where it was referred to the Senate Committee on Local Government. A vote to move the bill out of committee failed, effectively killing the bill for consideration in this session (technically it is postponed indefinitely). This issue may not go away, however, and could resurface.

We will continue to monitor this bill and other legislative developments that impact the ability of persons injured due to another's negligence or wrongful conduct to obtain a full and fair recovery of the damages caused. If you or a loved one requires legal assistance in a case of medical malpractice in Colorado, please contact Paulsen & Armitage, LLC.

The Government Needs Your Money… to Rein in Frivolous Lawsuits?

2011-02-28T15:55:00.000-08:00

During the President's State of the Union Address in January, his remarks were met with applause from at least one side of the aisle when he said, "I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits." These were not just empty words; the President has included $250 million in his budget for the Justice Department to "provide incentives for State medical malpractice reform,"(see Table S-8 in the Budget), i.e. to award grants to states who rewrite their medical malpractice laws to include caps on damages and other measures. This move follows on the heels of the President's bi-partisan debt reduction commission, which issued a call for placing a cap on noneconomic damages in malpractice cases (see Balancing the Budget on Broken Backs, November 30, 2010).

Long-considered a plank in the Republican platform, the President's push may be part of an overall strategy to appease Republicans and gain support for other Democratic and Presidential proposals and priorities. If doctors truly are practicing "defensive medicine" and ordering expensive and medically unnecessary tests out of fear of lawsuits, then reforming the system in some way should save money to the system overall, although just how much remains unclear, and whether it is worth investing $250 million in taxpayer money is even murkier.

More to the point regarding the President's statement in his address to the nation, what do damages caps have to do with so-called "frivolous" lawsuits? If a lawsuit is frivolous, meaning that it was brought without merit, it is likely to either be dismissed by the court or given short shrift by a jury of people who are none too happy about being called away from their lives to listen to a case that should never have been brought in the first place. Damages caps only come into play in serious cases, where the injuries were severe and catastrophic, and the jury has determined that the defendant should pay. In other words, caps on damages come into play in cases where the damage award is needed the most, and the plaintiffs are the most deserving of receiving every penny the jury has seen fit to award.

The President's budget is only one step in the overall budgeting process, which is ultimately decided by Congress, and both the House and the Senate will each present a budget of their own, with the final version likely containing elements of all three. But with a Republican-controlled House and less than a supermajority of Democrats in the Senate, it seems not unlikely that any Republican-friendly proposals - such as medical malpractice "tort reform" - from the President have a good chance of being adopted.

At Paulsen & Armitage, LLC, we will continue to monitor legislative attempts and changes in the law at the federal level and here in Colorado, just as we continue to provide the highest quality legal service to our clients who have been the unfortunate victims of medical malpractice or other injuries. If you or a loved one has been injured by the negligence or wrongful conduct of a doctor, hospital, or other health care professional, contact our office for assistance.

Hot Coffee: Medical Malpractice and Damage Caps

2011-01-31T08:42:00.000-08:00

Colorado law imposes damage caps on medical malpractice claims against hospitals and physicians. Awards may not exceed $1M per patient, and of that $1M, no more than $250,000 may be attributable to non-economic loss or injury. For patients with staggering medical bills, courts may find that future economic damages exceed this cap, and award damages in excess of the limit, but only if it would be unfair to do so otherwise.

A new documentary, Hot Coffee, presents the position that such damage caps relieve the wrongdoer of responsibility for damages, and ultimately require taxpayers to pay for medical malpractice victims' expensive healthcare costs. One of the families featured in the film became the victim of medical malpractice when their doctor failed to properly monitor the birth of twins, resulting in one of the twins being born with cerebral palsy.

In a revealing interview conducted after the film's premiere at the Sundance Film Festival, the family describes how they were successful at trial, but lost much of their damage award after the judge applied Nebraska's med mal cap. The jury awarded the family just over $5.5M, about half of their son's projected medical expenses (estimated at $12.4M); however, the judge reduced the award to $1.25M to comply with the hard cap.

Fortunately, Colorado allows for higher damage awards in some cases; however, our state's cap is regularly enforced, and the Colorado Supreme Court has held it to be constitutional. Therefore, in order to receive proper compensation for your injuries beyond the cap, it is imperative to hire an attorney who can establish that it would be unfair to reduce your damage award.

If you have been injured because a healthcare provider breached the industry's standard of care, contact us for assistance. In most cases, doctors, hospitals, and other medical professionals have substantial insurance policies to cover claims. There is no reason that you, or the taxpayers, should foot the bill for an injury caused by a medical professional's negligence, recklessness, or wrongful conduct.

Colorado Supreme Court Establishes Rule on Expert Testimony

2010-12-30T12:25:00.000-08:00

On November 22, 2010, the Supreme Court of Colorado announced its decision in the matter of In Re Garrigan v. Bowen, relating to the use of expert testimony in a medical malpractice action. In the underlying case, the plaintiff patient sued the defendant anesthesiologist, claiming that the defendant negligently managed the patient's care during lumbar spine surgery, causing the plaintiff to suffer loss of vision as a result.

As part of its defense, the defendant hired an expert witness who was the lead author of a published study on post-operative visual loss. The defense expert was going to testify about the study at trial.

The Limits of Discovery

The phase before trial is known as discovery, when each party seeks to obtain facts and information about the case from the other party. A crucial component of discovery is obtaining the other party's witness list, including expert witnesses the party plans to call at trial. It is important to know what the witness will testify to in order to adequately prepare for trial.

Rule 26 (a)(2)(B)(I) of the Colorado Rules of Civil Procedure requires the party to produce a written report or summary of the testimony to be provided, along with "…the data or other information considered by the witness in forming the opinions…" to be expressed in the case. In the present case, the plaintiff objected that the defense did not list the raw data upon which the study was based, but only produced the study itself.

The trial court held that the defense witness had considered the raw study data in forming her opinions for the present case, so the defense should have provided the underlying data when requested by the plaintiff. The Supreme Court disagreed and held that the expert did not consider the underlying data in connection with the particular case, and so the defense was not required to produce such information for the plaintiff.

In making its ruling, it seems that the Supreme Court has significantly narrowed what material must be disclosed by an expert witness, regardless of the facts and circumstances of the particular case. This rule limits the trial courts' discretion to rule on what evidence should be produced in the discovery process. It also hampers the ability of one side to adequately prepare a cross-examination of the other party's witness.

This ruling cuts both ways, in that both plaintiffs and defendants typically use expert medical testimony in medical malpractice cases. With neither side being adequately prepared to examine the other party's testimony, the result of this ruling may be to make medical malpractice trials more confusing and difficult for the jury to reach an understanding of the facts.

If you believe that you or someone you love has been the victim of medical negligence or medical malpractice, contact the Colorado medical malpractice lawyers at Paulsen & Armitage, LLC, for assistance.

Balancing the Budget on Broken Backs

2010-11-30T10:12:00.000-08:00

The results are in. The bipartisan National Commission on Fiscal Responsibility and Reform, created by President Obama by executive order on February 18^th, 2010 submitted its draft proposal for deficit reduction on November 10^th. The 50-page plan calls for reducing the deficit nearly $4 trillion by 2020 through cuts in spending, tax reform, and other measures. A significant portion of the proposal is dedicated to a package of health care savings, which includes, among other provisions, a cap on noneconomic damages in malpractice cases.

Colorado already limits non-economic damages, e.g. pain and suffering, in medical malpractice cases at $300,000. Caps on damages were first enacted in Colorado in 1986. The cap was increased from $250,000 to $300,000 for claims arising after July 1, 2003, but has not even been adjusted for inflation since then. In contrast, non-economic damages in other cases of negligence can be assessed at nearly one million dollars.

Obviously, the harm caused by an incompetent or negligent doctor or hospital can be just as great as that caused by a negligent truck driver or restaurant owner. What, then, is the reason for this double standard other than an organized and effective lobby of physicians and their insurers? Whether Congress acts upon the report or not, the report has already been seized upon by insurance industry lobbying groups as support in their long-standing fight to enact "tort reform" at the state and national levels.

The justice system is equipped to handle personal injury and medical malpractice claims appropriately. Frivolous suits are dismissed, and plaintiffs who are truly injured have the burden of proving the nature and extent of their injuries and justifying the dollar amount they seek. A jury of peers decides how much in damages to award, and judges have the discretion to adjust those figures when they deem it necessary.

If as a country we are looking at ways to reduce the deficit, which is a laudable goal, do we really need to do it at the expense of people and families who have suffered severe and catastrophic injuries due to the gross neglect or incompetence of the system to which they entrusted their health?

Thank you for taking the time to read our blog. We hope that these articles are both informative and thought-provoking. If you or a loved one has been harmed in a case of medical malpractice, contact our office for professional legal help. If you have a question or comment, please feel free to reply to this blog or contact us via e-mail.

Colorado Doctors Performing Surgery on the Wrong Patient, Wrong Body Part

2010-10-29T14:50:00.000-07:00

A recent study of surgical procedures in Colorado hospitals and health care facilities turned up an alarming number of cases where a surgery was performed on the wrong patient or on the wrong body part. The study, reported in the October issue of the medical journal Archives of Surgery, analyzed a database of over 27,000 adverse occurrences reported by physicians between 2002 and 2008. The findings reported 25 procedures performed on the wrong patient and 107 procedures performed on the wrong part of the body. Since the study only looked at physician self-reported incidents, the actual number of wrong surgeries could be significantly higher.

The mistake does not always originate in the surgery room, the study found. For instance, a mislabeled lab result can result in an unnecessary operation being performed, as happened to three men in the study who had healthy prostrate glands accidentally removed. Although procedures have been put in place requiring the surgical team to take a "time-out" before beginning the procedure to review that they have the right patient and the correct surgery site, this protocol is not always performed with the full attention of the surgical staff and often fails to prevent the wrong surgery.

Wrong-site or wrong-patient surgeries are referred to as "never events" because they should never happen; in other words, there should be zero tolerance for these types of mistakes. The medical establishment also has a term called "sentinel event" to refer to an unexpected occurrence involving death or serious injury, signaling the need for immediate investigation and response. Wrong-site surgeries are among the types of incidents reported as sentinel events by The Joint Commission, the foremost health care accreditation and certification organization in the country.

The wrong surgery caused significant harm in 43 of the cases studied, and one patient died following a wrong-site procedure. Any case of this type of medical malpractice is also likely to cause significant emotional trauma in addition to the physical pain and damage done by operating on the wrong patient or the wrong body part. If this type of needless tragedy has happened to you or a member of your family, contact the experienced Colorado medical malpractice lawyers at Paulsen & Armitage, LLC, for assistance.

Improving Communications With Patients May Reduce Medical Malpractice Costs

2010-09-30T11:17:00.000-07:00

Colorado has an "apology statute" for medical malpractice claims that precludes the patient from admitting evidence of doctor statements "expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence." This evidence law, although similar to provisions in twenty-five other states, is the broadest and most protective of physicians. While the statute encourages doctors to apologize for medical errors, these apologies are often empty, in that they do little to promote patient safety.

In Michigan, where the prevailing practice for medical institutions facing potential malpractice liability has been to terminate all communication between doctor and patient, a recent study suggests a new approach. A twelve-year study conducted at the University of Michigan Health System (UMHS) revealed that a doctor's communication with patients after medical errors tended to significantly reduce costs associated with malpractice actions. In particular, the researchers conducting the study found that annual figures for both lawsuits and legal defense expenditures decreased by over 60% between 2001 and 2010.

UMHS conducted internal reviews for cases involving potential malpractice liability and shared the findings with the affected patients, even if the physician was found to be at fault. Rather than merely providing apologies, UMHS's program sought to educate and inform all parties involved, bringing a level of transparency intended to promote patient safety and peer review.

With the breadth of Colorado's statutory protection of doctor admissions, policy reform in this area may be slower to develop. Nonetheless, the UMHS study reveals a benefit to patients, doctors, and medical institutions that strongly supports the need for more open investigation and continued meaningful dialogue.

Thank you for reading our blog. Personal injury 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.

Infamous "Nose Doc" Starts First Trial

2010-08-27T12:05:00.000-07:00

The first of many civil trials against Dr. Mark Weinberger began this week in Indiana state court, alleging the doctor committed malpractice by lying to a patient about his condition, billing for procedures which were not actually performed, and performing an unnecessary procedure which led to lasting pain and suffering and physical damage. This lawsuit is only one of some 350 lawsuits that have been filed against the doctor, who fled the country, was extradited from Italy, and is currently in prison awaiting trial on 22 criminal counts related to his medical practice.

The civil case against Weinberger first went before a medical review panel, which is a required step in Indiana in order to pursue a claim for medical malpractice. If successful, the plaintiff may obtain compensation from both the doctor's insurer and the Indiana Patient Compensation Fund (PCF). Doctors covered under the Indiana law are liable up to $250,000 in damages, while the PCF may pay up to an additional $1,000,000. Doctors can opt into the program by purchasing liability insurance up to the $250,000 limit and paying a surcharge into the state's PCF.

It appears much of this case will be a "battle of the experts" with both sides presenting expert medical testimony on several key issues, such as whether the procedures which were performed were medically necessary, and whether the procedures were performed incorrectly, causing damage to the patient. The defense already conceded in its opening statement that the doctor violated patient care standards, but the extent of any injury caused by the malpractice remains a disputed issue, one which will bear heavily on the amount of any jury award.

Indiana law shares significant similarities and departures from Colorado law. While Colorado does not require that a panel of experts review a claim before it can proceed, plaintiffs are required within 60 days of filing suit to certify that a competent expert has been consulted on the case. And while Colorado does not have a state-run patient compensation fund, it does require doctors and hospitals to maintain liability insurance of at least $500,000 per incident. As to damages caps, Colorado plaintiffs are limited in most cases to a $1,000,000 judgment, with a limit of $250,000 on non-economic damages such as pain and suffering, mental anguish, and emotional distress.

Whether actual damages are small, or even if they exceed a million dollars, the attorneys at Paulsen & Armitage will fight to see that the plaintiff is fully compensated for all economic harm such as medical expenses and lost wages. If you have been mistreated by your physician who performed unnecessary or damaging procedures, or abandoned you during the course of your care, contact Paulsen & Armitage, LLC for immediate assistance.

"The July Effect" Haunts Hospitals and Patients Year After Year

2010-07-22T15:31:00.000-07:00

Historically, it has been believed that the month of July sees more doctor errors resulting in patient deaths than any other month of the year. This has been attributed, correctly or not, to the large influx of new medical students who begin their residency placements every July. Inexperienced new residents are infamous for making mistakes as they struggle to adjust to their new jobs, which often call for long shifts. On July 5, 2010, National Public Radio's Michele Norris interviewed Professor David Phillips of UC San Diego about the legendary "July Effect" and whether there is any truth to it.

Professor Phillips recently finished conducting a study and concluded that a "July Effect" actually does exist. He looked at 250,000 medication error deaths from 1979 to 2006 and found, in counties with teaching hospitals, a significant spike in those that occurred in the month of July. Specifically, over the years, medication errors spiked by ten percent above expected percentiles in the months of July in counties with teaching hospitals; no such spike was observed in counties without teaching hospitals. Furthermore, there was no equivalent spike in deaths outside the hospital, or in deaths from other causes during July.

The study is alarming for patients and their families. Professor Phillips suggests several things individuals can do to prevent themselves or their loved ones from becoming a victim of a medication error in a teaching hospital. First, if you need a treatment or a procedure that is not urgent, instead of July, you might consider going into the hospital in August, when the rate of medication error deaths appears to return to normal. Second, if you must be treated in July, Professor Phillips suggests that you "firmly and assertively and politely ask medical staff to double-check on the medicines and the dosages that are being provided." If you are unable to do that, ask an advocate – such as a friend or relative – to come with you and check the medication on your behalf.

According to Professor Phillips, improved safety could be obtained in teaching hospitals in several ways. First and foremost, residents and their supervisors, as well as other staff, should be notified about the findings of the study so that they can increase their vigilance against medication deaths in July. Further, the professor notes that residents may benefit from increased support as they begin their work. He explains that surgical residents, unlike medical residents, work with a team; and there is no documented spike in surgical deaths in July despite the fact that new surgical residents are beginning their jobs during this time as well.

If you believe that you or a loved one may have been the victim of a medication error or any other type of hospital error or medical negligence, contact an experienced medical malpractice attorney. At Paulsen & Armitage, LLC, our attorneys fight for the rights of injured people, seeking the maximum monetary damages available to compensate our clients for the harm they have suffered at the hands of inexperienced or incompetent doctors. To learn more, contact Paulsen & Armitage, LLC today.

Wife Sues Doctors after Husband Contracts Cancer from Organ Donor

2010-06-30T16:10:00.000-07:00

Kimberly Liew filed a medical malpractice claim against the NYU doctors who gave her husband a cancer-ridden kidney in 2002. The case went all the way to a jury trial, but on May 28, 2010, the jury ultimately found the doctors were not at fault in Mr. Liew's death, according to the Wall Street Journal.

Mr. Liew, a 37-year-old man, received the kidney in early 2002 from a 50-year-old woman who died after having a stroke. Weeks after the transplant, his doctors learned that the donor had uterine cancer when she died. They then allegedly informed Mr. Liew that although the safest plan of action would be to remove the kidney, there was a "slim" chance that he would actually catch cancer from the organ if he kept it. Mr. Liew, who had hated dialysis treatments, chose to keep the kidney. Sadly, Mr. Liew in fact did get cancer and, although the kidney was later removed, the disease had already spread through his body. He died in September 2002. In the lawsuit, his wife argued that doctors should have removed the kidney when they learned the donor had cancer.

In the end, jurors apparently sided with NYU's doctors, who claimed that the chance of Mr. Liew developing cancer from the transplant truly was small, and that Mr. Liew had fought hard to keep his kidney, despite being warned of the potential consequences.

Organ transplants can be life-saving. However, these procedures can sometimes cause new health problems for the individual receiving the transplant. Despite screening for infectious diseases that is required prior to organ donations, cases of undiagnosed malignancies being transmitted do occur.

If you or someone you know may have been the victim of medical malpractice or medical negligence, contact Paulsen & Armitage, LLC for assistance. Our attorneys fight for the rights of the injured and seek the maximum monetary damages available to compensate our clients for the harm they have suffered at the hands of careless or incompetent doctors, hospitals, and health care providers.

Michael Skolnik Medical Transparency Act

2010-05-04T14:25:00.000-07:00

The Michael Skolnik Medical Transparency Act (the “Act”) was signed into law in 2007 and became effective January 1, 2008. The Act gives Colorado consumers access to information about their doctor’s license status and medical malpractice settlements and judgments via the Colorado Board of Medical Examiners website. The purpose of the Act is to help consumers make more informed decisions when selecting a doctor. The Act was endorsed by the Colorado Medical Society, after wording was clarified to make it clear that only settlements or final judgments to medical malpractice claims would be made public, rather than the mere filing of a medical malpractice claim.

Pursuant to the Act, upon application for, or renewal of, a medical license in the State of Colorado, a doctor must provide the following information:

any public disciplinary action taken by a medical board of any state or country;
any agreement whereby the doctor temporarily ceased or restricted practice;
any involuntary limitation on the doctor's privilege to practice at a hospital or clinic;
any involuntary surrender of the doctor's registration with the Drug Enforcement Administration;
any final criminal conviction or plea arrangement connected to a felony or crime of moral turpitude anywhere; and
any final judgment, settlement or arbitration award for medical malpractice.

The Act is named after Michael Skolnik, who was 22 and studying to be a pediatric nurse when he blacked out one day in 2001. Skolnik underwent surgery by a neurosurgeon, and was left half-blind, partly paralyzed, psychotic, and with the reasoning ability of a third grader. Skolnik died three years later, having amassed $4.8 million in medical bills. His parents stated that had they known the neurosurgeon had a prior malpractice claim settlement in Georgia, they would have sought a different surgeon to perform the procedure. They later learned that the neurosurgeon had only done this procedure once before.

If you or someone you know is a victim of medical malpractice or medical negligence, contact Paulsen & Armitage, LLC for assistance. Our attorneys fight for the rights of the injured and seek the maximum allowable compensation necessary to compensate our clients for the harm they have suffered at the hands of negligent or incompetent doctors, hospitals, and health care providers.

Colorado Crush Team Physician Accused of Malpractice

2010-03-31T11:05:00.000-07:00

Former Colorado Crush arena football team player Clay Rush has filed a medical malpractice lawsuit against team physician Dr. Saurabh Mangalik and his employer, HealthONE Clinic Services, for failing to properly treat his concussions. Rush was the kicker for the Colorado Crush in 2008, and alleges that he sustained several blows to the head during various games. Rush alleges that his concussions were mistreated, resulting in permanent injuries. The lawsuit did not disclose the nature or extent of Rush’s injuries, but concussions are a form of brain injury.

The lawsuit contends that the doctor treated Rush for headaches and sent him back on the field so that the doctor could “properly evaluate and observe him.” The doctor disputes this claim, asserting that “his records indicated that he had repeatedly told Rush and team trainers that Rush should not play or practice until his symptoms, like headaches and dizziness, cleared. The modern standard of care for sport-related concussions is to forbid physical activity until all symptoms subside because sustaining another head injury too soon can cause far greater damage.”

Concussions

Concussions may be mild to severe. A person may not necessarily lose consciousness from a concussion, and symptoms may not appear for several days or weeks. Signs to watch out for include:

Headache or neck pain that persists
Light-headedness, balance problems, or dizziness
Nausea
Increased sensitivity to light and sound
Double or fuzzy, blurred vision or tired eyes
Loss of sense of smell or taste
Ringing in the ears
Difficulty remembering, concentrating, or making decisions
Slowness in thinking, speaking, acting, or reading
Getting lost or easily confused
Feeling sluggish, tired, listless, or unmotivated all of the time
Inexplicable mood changes
Changes in sleep patterns

Cases involving medical malpractice or traumatic brain injuries require an attorney with the right combination of legal experience and medical knowledge. If you believe that you or someone you love has been the victim of medical negligence or medical malpractice, contact our office for help.

Medical Malpractice Placed In, Pulled Out, of the Health Care Debate

2010-02-18T14:34:00.000-08:00

In 1945, The United States Supreme Court ruled that Congress has the authority to regulate the insurance industry. Rather than doing so, Congress passed a law known as McCarran-Ferguson, giving states the sole authority to regulate insurance companies. Since that time, insurance companies have been exempted from federal anti-trust laws, which are designed to promote competition by prohibiting monopolies and other practices in restraint of trade.

The insurance industry may soon find itself brought under federal regulation as part of national health care reform, which in various incarnations seeks to repeal McCarran-Ferguson. However, questions about whether medical malpractice insurance will be included in the repeal have raised strong opposition from the property-casualty insurance industry.

The main thrust of repealing McCarran-Ferguson as part of health care reform is to bring health insurance companies under federal jurisdiction. But medical malpractice is not health insurance, as the property-casualty industry is quick to point out.

It may be argued that states already prohibit trust-like activity among both health insurance and medical malpractice insurers. Activities such as price fixing, bid rigging, and market allocations are all illegal under most state laws, according to the Congressional Budget Office, a legislative agency providing objective, nonpartisan, and timely analyses to aid in economic and budgetary decisions on the wide array of programs covered by the federal budget. Each state's power, however, is limited in its scope, and federal action could possibly be more comprehensive.

Ironically, federal regulation of medical malpractice could actually decrease competition, increase costs, and result in smaller companies merging into larger ones, all perceived ills that anti-trust laws are aimed at preventing. This information comes from the Congressional Research Service, a non-partisan agency within the Library of Congress which provides policy and legal analysis to committees and members in both houses of Congress.

The latest word from the Hill is a move led by Democrats to keep the exemption from federal regulation in place for companies that offer malpractice insurance.

No matter what the politicians decide, our firm will continue to fight for the rights of the injured and seek the maximum allowable compensation necessary to compensate our clients for the harm they have suffered at the hands of negligent or incompetent doctors, hospitals, and health care providers. If you believe that you or someone you love has been the victim of medical negligence or medical malpractice, contact our office for help.

Would Medical Malpractice Tort Reform Really Help?

2009-12-02T08:31:00.000-08:00

In October, the Congressional Budget Office (CBO) issued a report to Congress about the potential costs and benefits of instituting national tort reform in medical malpractice cases. While the CBO findings do suggest that tort reform might reduce health care spending and malpractice insurance premiums, the report also questions the impact this reform would have on patients' actual health.

The CBO estimates that the cost of medical malpractice claims, including insurance premiums, amounts to approximately $35 billion, or two percent of total health care spending. It further went on to estimate that if a group of tort reform proposals were adopted, total reductions around .5 percent of current total health care expenditures, or about $11 billion could be saved.

Few would argue with the appeal of saving billions of dollars in potentially unnecessary spending. However, the CBO rightly questions the other impact of medical malpractice tort reform, namely the outcome on actual medical patient health. In its report, it expressed concern about the broader impact these reforms might have on the public in the way of health outcomes. The problem is that many studies inquiring into the impact of medical malpractice reform only study the economic concerns and largely ignore the impact on people's actual health.

Unfortunately, the few studies that have considered the impact on people's health have lead to inconclusive results. The CBO report cites one startling 2009 study that suggests "a 10 percent reduction in costs related to medical malpractice liability would increase the nation's overall mortality rate by 0.2 percent." However, it cites two other studies that suggest there is no connection between tort reform and an adverse effect on patient health. Clearly, before Congress passes national medical malpractice reform, more research must be done to better determine the impact such reform would have on patients nationwide.

Paulsen & Armitage is always apprised of changes in medical malpractice laws both at the state and national levels. We have an in-depth understanding of medical malpractice laws, issues, and litigation, and we are committed to staying current on all of the fast-moving developments in the area of medical malpractice tort reform. If you or someone you know is a victim of medical malpractice or medical negligence, contact us for assistance.

Obama Administration Offers Grants to Curb Medical Malpractice Suits

2009-10-09T08:26:00.000-07:00

The debate between trial lawyers and doctors concerning medical malpractice reform appears to be continuing not only on a statewide level in Colorado, but also on a national level as well. Recently, the Obama administration, in an effort to discourage frivolous medical malpractice lawsuits, offered $25 million in grants that would identify ways to reduce medical errors, reduce malpractice insurance premiums, and prevent nuisance litigation.

The White House's proposals have already been met with opposition. Republicans and consumer groups have stated that Obama's plans at medical malpractice reform lack substance. Senate Minority Leader, Mitch McConnell, stated that Obama's proposals do not get rid of enough frivolous lawsuits on doctors and hospitals. The U.S. Chamber of Commerce, representing business interests, stated that the amount of money offered by the administration is insufficient to make any significant progress in medical malpractice reform.

Contrary to what most people believe, however, an article in The New York Times stated that the direct costs of medical malpractice suits, including jury awards and settlements, constitute only a small fraction of health care spending according to economists. In actuality, according to a Harvard economist, Amitabh Chandra, who conducted research on medical malpractice costs, noticed that doctors conducted a noticeable amount of wasteful treatment because doctors feared getting sued by their patients. Chandra found that as much as $60 billion annually or approximately three percent of overall medical spending was attributable to doctors requesting unnecessary treatments.

Additionally, although many people perceive that large medical malpractice settlements and jury awards are commonplace, this is not factually true. In reality, medical researchers have found that after reviewing patient records that numbered in the thousands, only two to three percent of incidents of medical negligence actually led to medical malpractice lawsuits. According to a member of The Robert Wood Johnson Foundation, only a small share of victims receive compensation for their medical injuries, and the award amounts vary widely, ranging from the minimal to the very high jury award amounts.

As the debate over medical malpractice reform continues, the laws regarding medical malpractice, including medical malpractice caps, may change over time. It is apparent though that high costs for medical care are not necessarily due to high medical malpractice jury awards. A combination of different factors is perpetuating high healthcare costs.

Our firm is always apprised of changes in medical malpractice laws both at the state and national levels. We have an in-depth understanding of medical malpractice laws, issues, and litigation. If you or someone you know is a victim of medical malpractice or medical negligence, contact us for assistance.

World's Largest Drug Company Hit With Record Criminal Fine

2009-09-08T10:54:00.000-07:00

Pharmaceutical company Pfizer, currently the largest drug company in the world, has been fined $1.3 billion for mispromoting Bextra, a once-popular painkiller that was taken off the market in 2004. Pfizer has agreed to pay an additional $1 billion in civil settlements to Medicare and Medicaid as reimbursement for improper prescriptions.

The federal investigation was sparked by the filing of a whistleblower lawsuit by a Pfizer sales representative who accused the drug company of marketing Bextra for unapproved, or “off-label” uses. Bextra (Veldecoxib) is a painkiller approved for relief of arthritis and menstrual pain. According to the whistleblowing employee - who will personally receive over $50 million in the settlement pursuant to whistleblower provisions in the federal False Claims Act - Pfizer promoted Bextra for uses and in doses that far exceeded the scope of the FDA approval.

A related settlement was also reached regarding kickbacks made by Pfizer to doctors for prescribing Bextra and several other drugs, often for off-label uses.

On the same day that Pfizer disclosed the cost of the settlement, it also announced the takeover of pharmaceutical giant Wyeth at a cost of $68 billion. The news of the merger overshadowed the news of the Bextra problem, which was understandably not highlighted by the drug company.

Doctors who prescribe drugs for a purpose or at a dosage not approved by the FDA may be committing malpractice and exposing themselves to liability. Although off-label use is quite common, it can be malpractice to prescribe drugs for off-label uses when there is no medical basis for doing so, or if safer, more established drugs are available that could accomplish the same purpose. Bextra, for instance, is an NSAID painkiller in the same class as aspirin, ibuprofen, and naproxen, all of which are widely available in differing forms and dosages, and are currently used to fight the type of pain for which Bextra was approved.

The use of defective or dangerous drugs, or the off-label use of otherwise safe drugs, can cause illness or injury, long-term damage, and even death. If you believe that you may have been injured by the prescription of a drug for an off-label purpose, contact our office for a consultation.

Do Damages Caps Make Sense?

2009-08-14T07:59:00.000-07:00

In Colorado, total damages in medical malpractice cases may not exceed one million dollars. Within that total cap, state law also places a $300,000 cap on non-economic damages, such as pain and suffering. About half the states in the nation have placed a cap on non-economic damages in civil litigation, with the caps ranging from $250,000 to $750,000. Most of these caps apply specifically to instances of medical malpractice.

The argument for capping damages is mainly an economic one; doctors argue that the potential for larger malpractice damage awards causes them to have to pay higher rates for malpractice insurance. Higher rates, in turn, will either cut into doctors' profits or be passed on to patients in the form of higher bills for office visits and procedures.

While capping damages may seem to make economic sense in the abstract, how do they stack up in individual cases where the cost inflicted by malpractice exceeds the statutory cap? Take, for instance, the recent case where around 21 patients at Rose Medical Center in Denver were exposed to hepatitis C at the hands of a surgical technician employed by the facility, who knew about her condition.

Hepatitis C is an incurable disease that can lead to cirrhosis of the liver or liver cancer. Certain drug therapies are effective at removing large quantities of the disease from the blood stream… at a cost of around $10,000 per treatment. While cost containment is a laudable objective for government policy, is it right for the state to set the price tag for being infected with a life-long, debilitating and potentially fatal condition? Does $300,000 sound like a fair exchange for the emotional pain and suffering these patients must endure, due to actions over which they had no control? Should the state enact a blanket cap without regard to individual circumstances, or should it be up to the judicial system to determine what is appropriate in a given instance?

Recent attempts to increase the $300,000 cap to $460,000 merely to adjust for inflation have been defeated in the legislature. The $300,000 non-economic and $1 million total damages caps still stand, although a judge does have discretion to exceed the total cap when it is shown that future medical expenses and lost wages will exceed the million dollar limit. For an individual infected with hepatitis C in the prime of life, it is more than conceivable that a million dollars will be inadequate to compensate for the loss.

Thank you for reading our blog. If you or someone you know has been injured due to medical malpractice, or someone you love has unfortunately died due to another's medical negligence, please contact us for assistance.

Colorado Patients Exposed to Hepatitis C from Former Hospital Employee

2009-08-12T08:30:00.001-07:00

Approximately 21 patients of Rose Medical Center in Denver, Colorado and Audubon Surgery Center in Colorado Springs have tested positive for hepatitis C. Preliminary investigations and tests link the patients' hepatitis C to Kristen Diane Parker's hepatitis C. Parker is a former surgical technician at both Rose and Audubon.

On July 23, 2009, Parker was indicted on 21 counts of tampering with a consumer product and 21 counts of obtaining a controlled substance by deceit or attempt by a federal grand jury. According to the criminal complaint, Parker, who is a former heroin addict and has hepatitis C, allegedly swapped her own dirty syringes that were filled with saline for syringes that were filled with Fentanyl, a narcotic that is 80 to 100 times stronger than morphine, and is often used to help patients after surgery manage pain.

Allegedly, Parker injected herself with Fentanyl, while patients unknowingly were infected with Parker's dirty needles. Out of the 4,700 Rose patients and 1,000 Audobon patients who were potentially exposed to Parker's hepatitis C, there are presently 21 hepatitis-infected patients who are preliminarily linked to Parker's hepatitis C. Authorities have advised all patients, who may have been exposed, to be tested.

Even though Parker is not a nurse, nor holds a medical degree, she received surgical technician training. Additionally, before she was hired at Rose, Parker's pre-employment blood test showed that she had hepatitis C. Despite her condition, Rose Medical Center allowed her to work in its operating rooms after it counseled her about her condition and exposure risks.

Hepatitis C
"Hepatitis" means inflammation of the liver. Hepatitis C is a contagious liver disease that arises after a person has been infected with the hepatitis C virus. Symptoms can range from mild illness lasting a few weeks to serious illness that attacks the liver. However, some individuals who are infected never develop any symptoms.

About 75 to 85 percent of people infected with hepatitis C develop chronic hepatitis C, which is a long-term illness, leading to major liver problems, such as cirrhosis--scarring of the liver--or liver cancer. Often, most people who have acute hepatitis, which is a short-term illness arising within the first six months of exposure to hepatitis C, will lead to chronic hepatitis C.

Hepatitis C is generally spread when blood from a person infected with hepatitis C enters the body of a person who is not infected. Common ways of transmission of hepatitis C include:

Sharing needles or syringes
Needlestick injuries in healthcare environments
Children who are born to mothers with hepatitis C

Some individuals, who have tested positive for hepatitis C, have sued Rose Medical Center for medical malpractice. Medical malpractice is an area of law where if a medical practitioner or medical facility fails to exercise adequate care or skill in treating the patient, doctors or hospitals may be liable for any injuries that are caused to the patient.

If you have suffered a medical malpractice injury due to the negligence of a doctor, hospital, or health care provider, you should contact us immediately for legal assistance. If you would like to discuss your matter with us, please contact our office for a confidential consultation.

Safety Risks of Angioplasties

2009-06-16T14:49:00.001-07:00

According to a recent investigative report by CBS, angioplasty is one of the most common medical procedures in the United States. The American Heart Association's Heart Disease and Stroke states that in 2006 as many as 1,314,000 angioplasties were conducted in the United States.

Angioplasty is a medical procedure where the medical practitioner places a small balloon at the location of the clogged blood vessel. The balloon is inflated and widens the obstructed blood vessel, and a stent is placed to prevent re-narrowing of the vessel. Typically, this procedure is considered to be safe, with only about one in 200 patients dying after having non-emergency angioplasty. Still, there is now a growing concern that angioplasties are conducted in unsafe situations and that too many angioplasties are being performed.

Safety Procedures for Angioplasties
Three well-known and respected cardiology organizations, the American Heart Association, the American College of Cardiology, and the Society for Cardiovascular Angiography and Interventions, caution that non-emergency angioplasties should be conducted only when there is a cardiac surgical support at the medical facility. However, smaller-sized hospitals have been performing non-emergency angioplasty without having on-site surgical support to act as back-up in the event something goes awry.

Instance of Possible Medical Malpractice
According to CBS's report, in 2006 Pearl Sullivan went to Holy Name Hospital in Teaneck, New Jersey for shortness of breath. Later on, the hospital's medical staff performed elective angioplasty on her, but complications arose and Sullivan died. Details of the procedure were not disclosed in the report, but Sullivan's family sued the hospital claiming the decedent did not understand the consent form she signed, which stated that on-site cardiac surgical back-up would not be present for the procedure.

Angioplasty is a Lucrative Business
Smaller hospitals are conducting angioplasties because they are trying to remain competitive, particularly when larger hospitals nearby are providing more medical services. Further, the procedure increases the financial margins for smaller hospitals, since on average the procedure costs $16,000 and as a whole, the angioplasty field brings in 21 billion dollars annually.

As a result of this financial potential and new recent technological advances, such as drug-coated stents, experts have remarked that too many angioplasties are being performed. In the past decade, the number of angioplasties being performed has tripled. One physician has also stated that 40 percent of the procedures performed are probably unnecessary. In addition, some studies have shown that medication or non-invasive methods, such as exercise, can be effective alternatives to angioplasty for individuals who are not at high risk of a heart attack.

Informed Consent
When a medical professional obtains a patient's consent, the consent must be informed consent. The physician must fully inform the patient as to the medical condition and the procedure that is about to be performed. In general, the physician should advise the patient of the following:

The diagnosis
Purpose of the procedure or treatment
Nature of the procedure or treatment
Available alternatives to the procedure or treatment
Risks and benefits of the procedure or treatment
Risks of foregoing the procedure or treatment

Patients should also be aware that consenting to a treatment does not absolve the medical practitioner of liability for any procedure that is negligently or incorrectly performed. The physician must exercise an appropriate level of care when performing the procedure or treatment.

Medical Malpractice Representation from Paulsen & Armitage
Thank you for reading our blog. Please keep in mind that our postings are not legal advice and your comments will not be treated as confidential. If you suspect that someone you care about has passed away due to the negligence of a doctor, hospital, or health care provider, please contact us immediately for legal assistance. If you would like to discuss your matter with us, please contact our office for a confidential consultation.

House Bill 1344 Regarding Medical Malpractice Damage Caps Fails to Pass

2009-05-08T09:14:00.000-07:00

On April 22, 2009, Colorado's House Bill (HB) 1344, a bill that originally would have raised the cap on non-economic damages from $300,000 to about $460,000 in medical malpractice lawsuits, died in the House. HB 1344 was sponsored by the Colorado Trial Lawyers Association, which introduced a similar bill, Senate Bill (SB) 164, in 2008, which was struck down by the House Judiciary Committee by a vote of seven to two on April 29, 2008.

The proponents of both bills argued that raising the caps on non-economic damages in medical malpractice cases was necessary to reflect inflation, particularly when the cap had been first placed in 1988, more than twenty years ago, at $250,000, and raised slightly in 2003, to $300,000. Non-economic damages typically include damages for pain and suffering, loss of companionship, and loss of marital relations.

Unchanged by either bill was the restriction on the total damages for medical malpractice cases, which is set at $1 million. The judge, however, would have the discretion to raise the total award amount.

When SB 164 died in the House Judiciary Committee, Representative Christine Scanlon (D-Dillon) sponsored HB 1344. The House Judiciary Committee approved HB 1344 on Monday, April 20th, but the bill was significantly watered down. Rep. Scanlon removed the language raising the cap on non-economic damages from the bill, because of the strong opposition by medical practitioners, such as the Colorado Medical Society, against the bill.

Opponents of HB 1344 argued raising the damages cap would have raised malpractice insurance rates by seven to ten percent. They argued that after the cap was put in place in 1988, medical malpractice rates fell and have continued to be low.

Proponents of HB 1344 were confident that it would pass, because unlike SB 164, which included a proposal to re-categorize physical impairment and disfigurement as economic damages, and thereby, possibly raise medical malpractice rates, HB 1344 primarily called for a raise on non-economic damages to reflect inflation.

After HB 1344, was stripped of its original language on readjusting medical malpractice caps, the only aspect of the bill that was left consisted of requiring medical malpractice insurers to get prior approval from Colorado's insurance commissioner before raising premiums by more than 5 percent annually. The bill also permitted the state insurance commissioner to publicly post the rate increases, and to hold hearings on proposed premium hikes, if requested to do so by a person acting in good faith.

Once the House Judiciary Committee approved HB 1344, in its revised form, leaving only the language regarding insurance premiums, the House Appropriations Committee approved the bill on April 21st. The bill appeared to be on its way to fully passing, but at the third and final reading on the House floor, it failed by 39 to 24 votes.

The Colorado Medical Society and Colorado Trial Lawyers Association have stated that they are willing to work through their disagreements, and reach some type of compromise regarding the issue of medical malpractice damage caps, but thus far, no solution has been reached. We will continue to keep you updated on any developments regarding this issue.

Thank you for reading this blog. Please be advised that our postings do not constitute legal advice and comments you leave will not be confidential. If you or someone you know has been injured due to medical malpractice, and you need immediate legal assistance, please contact Paulsen & Armitage, LLC for a consultation or information.

Update on Colorado Senate Bill 164

2009-04-15T07:17:00.000-07:00

In 2008, Colorado's Senate Bill (SB) 164, which would have raised the cap on economic damages in medical lawsuits from $300,000 to about $468,010 failed to pass and died in the House Judiciary Committee. Now, according to an article in The Denver Post, the legislation is being reintroduced with only a few weeks left in the session, which is set to end on May 6th.

The bill sought to change Colorado law, which currently allows recovery of $300,000 in non-economic damages. Non-economic damages may include such damages as pain and suffering, loss of companionship, and loss of consortium, which is the loss of marital relations. In 1988, the cap was set at $250,000 and then was raised to $300,000 in 2003, but has not been raised since then to adjust for inflation. SB 164 also tried to re-categorize physical impairment and disfigurement from non-economic damages, which would have fallen under the $300,000 statutory cap, to economic damages.

Proponents of the bill, such as the Colorado Trial Lawyers Association, argue that non-economic damages should reflect inflation. Those against the bill, such as insurance companies and doctors, have advocated against the bill arguing that it would cause medical malpractice insurance rates to increase significantly.

Presently, medical malpractice damages are limited at $1 million, but judges have the discretionary authority to raise the total award amount. This rule would remain unchanged by the bill.

Unlike the bill's first introduction, Senate President Peter Groff (D-Denver) and Speaker of the House Terrence Carroll (D-Denver) are not re-sponsoring the bill this second time. Instead, Representative Christine Scanlan (D-Dillon) is sponsoring the bill. Scanlan, who is not an attorney, believes not being an attorney and not having prior issues with this bill will help get the bill passed. Further, Democratic Representatives, Debbie Stafford and Cheri Jahn, who opposed the bill last year, are no longer in office.

Some people have opposed bills such as SB 164 because they argue that statutory caps prevent high jury awards in medical malpractice cases. However, others counter that juries are responsible for issuing such high awards, since just raising the statutory cap does not mean a jury would award the maximum amount to every injured plaintiff. They further argue that low statutory caps prevent injured victims from receiving the adequate compensation injured victims deserve.

Thank you for reading this blog. If you or someone you know has been injured due to medical malpractice, or someone you love has unfortunately died due to another's medical negligence, please contact us for assistance. Please also be advised that our postings do not constitute legal advice and comments you leave will not be confidential. If you would like further information or a consultation, please contact us today.

Supreme Court Rulings Effect Consumer Lawsuits

2009-03-17T10:22:00.000-07:00

Recent rulings by the United States Supreme Court may effect every consumer’s ability to raise claims against medical device manufacturers and drug manufacturers for injuries resulting from product defects.

Medical Devices
In February 2008, the U.S. Supreme Court ruled eight to one that FDA review and approval of medical devices, such as pacemakers, protects manufacturers from state lawsuits even if the devices do not work properly. The ruling applies to Class III medical devices, which are devices that receive the highest level of FDA scrutiny prior to approval. The FDA notes that “Class III devices are usually those that support or sustain human life, are of substantial importance in preventing impairment of human health, or which present a potential, unreasonable risk of illness or injury.”

In this case, Charles Riegel died in 1996, after a balloon catheter inserted during an angioplasty burst. The catheter was a Class III medical device, which had been approved by the FDA after extensive testing, and was made by Medtronic.

The effect of U.S. Supreme Court decision is still being determined. The decision will likely limit the options of legal recourse available for consumers injured by medical devices approved by the FDA. The decision also appears to fall in line with existing federal law governing the FDA. Federal law prevents state law from pre-empting the FDA’s approval process for medical devices.

Drug Warning Labels
The U.S. Supreme Court, in March 2009, determined in a six to three decision that even if a drug undergoes FDA review, patients injured by that drug may still pursue state liability lawsuits against drug companies.

In this case, Diana Levine (a former guitarist) lost her arm in April 2000 after she went to a Vermont health clinic for treatment of a migraine. Wyeth's Phenergan drug (an anti-nausea drug) was injected into Ms. Levine by a physician’s assistant. For this particular drug, medical personnel have several options for injecting the drug, including:

The "IV-push" (drug is injected into a vein and is the most risky injection method)
Intramuscular injection
A slow intravenous drip into a vein

Unfortunately, the injection in this case was made using the “IV-push” method and was directly injected into Ms. Levine’s vein. This course of action allowed the drug to reach an artery and immediately caused gangrene. A jury in Vermont originally found that Wyeth's label had inadequate warnings regarding the dangers of the injecting the drug through the “IV-push” method and Ms. Levine was awarded $6.7 million. The Vermont Supreme Court upheld the jury’s ruling in 2006, prior to the U.S. Supreme Court upholding the jury’s determination. Wyeth had argued that the warning on the drug was sufficient because it had been approved by the FDA, which the U.S. Supreme Court rejected.

The effect of this ruling is not yet known. One possible effect is that drug companies, like Wyeth, will likely fail in arguing that a case raised by an injured patient should be dismissed, simply because the FDA approved of the warnings placed on the drug’s packaging.

Medical Malpractice Representation from Paulsen & Armitage. Thank you for reading our blog. If you suspect that you or a loved one have been injured by a defective medical device or drug, 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.

Anesthesia Awareness

2009-03-05T10:36:00.000-08:00

Imagine undergoing surgery after being given general anesthesia. However, instead of being unconscious during the procedure, you feel the unthinkable physical pain of surgery. But, because of the paralytic drugs you had received prior to surgery, you are unable to move or shout to express what you are experiencing.

The frightening experience described above is a condition called, anesthesia awareness, or unintended intra-operative awareness. It is a condition where patients undergoing surgery are aware of parts or all of the surgical procedure.

Effects of Anesthesia Awareness
Typically, when a patient is given general anesthesia, the patient receives a combination of drugs: sleep agents that make the patient unconscious and have no memory of the surgery, painkillers, and paralytics that prevent the patient from moving. If a patient does not receive enough doses of any of these drugs, then the patient may be conscious of events during surgery or feel pain, and worse, feel pain but be unable to tell doctors.

Of those patients who experienced anesthesia awareness, 42 percent felt the pain of the operation, 94 percent experienced anxiety, and 70 percent had lasting psychological problems, such as post-traumatic stress disorder. The experience is so traumatic for some patients that some have flashbacks and panic attacks whenever they experience anything that reminds them of their ordeal.

Causes of Anesthesia Awareness
Anesthesia awareness can occur due to the anesthetist’s error. An anesthetist may provide an inadequate amount of drugs to the patient or inadequately monitor the patient. Anesthesiologists should monitor patients by checking their vital signs to make sure the patient is unconscious and not experiencing pain. Another possible cause can be an anesthesiologist’s improper use of machines. Other times, the anesthesia is lightened too soon towards the end of surgery, so that the operating room can be used for the next patient, or the anesthesia is too light because the patient is a trauma patient who could die if given too much anesthesia.

Patient’s Experience with Anesthesia Awareness
In 2002, Sidney L. Williams was undergoing open-heart surgery when he awoke and heard the bone saw cutting into his sternum. Williams could hear the doctors discussing his diseased heart, and later he felt sharp, excruciating jolts when the doctor tried to shock his heart. Williams was unable to indicate what he was feeling to doctors at the time, because he was paralyzed due to the paralytic agent and because he was intubated.

Recommendations by JCAHO
Although anesthesia awareness is a rare condition where approximately 20,000 to 40,000 patients of 21 million patients who undergo general anesthesia, become conscious during surgery, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), a quasi-governmental organization that certifies hospitals, issued an alert, trying to reduce the occurrence of anesthesia awareness. The JCAHO made several recommendations to healthcare organizations, which included the following:

Educating clinical staff about the condition and how to manage patients who experience the condition
Identifying patients who are at higher risk of anesthesia awareness
Having anesthesia monitoring techniques
Maintaining anesthesia equipment
Providing patients with access to mental health treatments

Thank you for reading this blog. If you or a loved one has suffered an anesthesia-related complication due to medical malpractice, or experienced serious injury 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.

Colorado Medical Malpractice Law

2009-01-06T09:16:00.000-08:00

If you or a loved one is injured or killed by medical malpractice, you are likely entitled to recover for your medical expenses, pain and suffering, lost wages, and more. Every state has its own specific laws governing medical malpractice cases. In this blog post, we will examine some of the basics of Colorado’s medical malpractice laws so that if you do find yourself in this unfortunate position, you will have a better understanding of your rights.

Statute of Limitations on Medical Malpractice Claims

In Colorado, you can file a lawsuit until two years from the date you discovered, or should have discovered, that you were injured by medical malpractice. However, you must sue before three years after the malpractice actually occurred. For children under six years old, they must file the lawsuit by their eighth birthday (Colorado Revised Statute 13-80-102.5(3)(d)(I)).

Limits on Recovery

Currently, Colorado law imposes a one million dollar limit on the total recovery in medical negligence and malpractice cases. Of those one million dollars, there is a $300,000 cap on non-economic damages, which include loss of companionship, loss of consortium from a spouse, and pain and suffering. As we discussed in earlier blog postings, legislation that would have slightly increased this limit on non-economic damages was defeated in the Colorado state legislature.

In Colorado, a defendant in a medical malpractice case cannot reduce its liability by showing that you were compensated by other sources, such as your health insurance. Additionally, Colorado does not limit the attorney fees you can recover.

Certificate of Review

Colorado law requires that, before you can make a medical malpractice claim, you must first obtain a certificate of review. A medical expert will carefully review the treatment you received that you believe caused your injuries and determine first if there was inappropriate care, and then if this care caused the injuries. Once your attorney obtains the certificate of review, your lawsuit can proceed.

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

Emergency Room Medical Malpractice

2008-12-12T08:25:00.000-08:00

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

2008-11-10T11:46:00.000-08:00

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

2008-10-14T08:33:00.000-07:00

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

2008-09-19T13:10:00.000-07:00

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

2008-08-12T21:48:00.000-07:00

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

2008-07-07T16:39:00.000-07:00

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

2008-06-10T14:04:00.000-07:00

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

2008-05-06T17:13:00.000-07:00

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

2008-04-30T17:14:00.000-07:00

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

2008-04-21T18:07:00.000-07:00

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

2008-04-10T12:01:00.000-07:00

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.