House Bill 1344 Regarding Medical Malpractice Damage Caps Fails to Pass

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

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

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

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

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.