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

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

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

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

California Medical Malpractice Law May Leap Ahead of Colorado by Decades

A California consumer group is currently circulating a petition to increase the statutory cap on noneconomic damages in medical malpractice cases from the current $250,000 amount to over $1,000,000. If this initiative petition gets on the ballot and is approved by the voters, people injured in California by a doctor's negligence or incompetence would be able to recover many times more than similarly injured people in Colorado.

The group behind the petition, Consumer Watchdog California, says that it merely wants to adjust the damages cap for inflation, something which has never been done since the first passage of the Medical Injury Compensation Reform Act (MICRA) in 1975. Without adjusting for inflation, $250,000 in 1975 is worth only about $58,000 today, small comfort to a person seriously injured by a doctor's medical negligence or incompetence.

Colorado Caps Started Out Behind the Times and Stayed There

When Colorado first put a cap on medical malpractice damages in 1986, it used the $250,000 figure that California had passed 11 years prior. But $250,000 in 1986 was already a paltry equivalence $123,000 in 1975. $250,000 in 1975 was really equal to $509,000 in 1986, according to the Consumer Price Index Inflation Calculator, so using the outdated California sum severely restricted the rights of injured persons to fair compensation.

Colorado has adjusted its damages cap only one time since 1986 - to $300,000 in 2003. At the same time, however, the legislature also brought damages for physical impairment and disfigurement under the cap, overturning a decision to the contrary by the Colorado Supreme Court in Preston v. Dupont and lessening the total compensation one could recover in such cases rather than increasing it.

Under current Colorado law, noneconomic damages are meant to compensate the injured person for their pain and suffering, inconvenience, emotional stress, physical impairment or disfigurement, and impairment of the quality of life, up to a total of $300,000 in most cases. At Paulsen & Armitage, LLC, our attorneys have decades of experience seeking the maximum compensation available for victims of medical malpractice in Colorado. If you have been injured due to a doctor's incompetence or medical neglect in Denver or anywhere statewide, contact Paulsen & Armitage, LLC for a free consultation with one of our experienced Colorado personal injury lawyers.