Colorado Medical Malpractice Law

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

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

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

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

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

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

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

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

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

Wrongful Death Lawsuit Involving Death of TV Spokeswoman

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

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

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

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

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



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

Surgical Fires Lead to Disfigurement, Death

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

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

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

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

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

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

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

Medical Malpractice-Birth Injuries

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

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

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

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

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

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

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

Michael Skolnik Medical Transparency Act

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

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

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

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

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

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

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

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

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

Colorado Governor Signs Two Important Bills Concerning Insurance

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

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

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

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

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