Colorado Medical Malpractice Summary

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Statutes of Limitations

Any medical malpractice action must be brought within two years after the date the injury and its cause were known or should have been known with the exercise of reasonable diligence. Colo. Rev. Stat. Ann. §§ 13-80-102.5 and 13-80-108 (West 1997). In no event may a medical malpractice action be brought more than three years after the act or omission that gave rise to the action, unless the malpractice was knowingly concealed, the act or omission consisted of leaving an unauthorized foreign object in the body of the claimant, or both the physical injury and its cause are not known or could not have been known through the exercise of reasonable diligence. Colo. Rev. Stat. Ann. § 13-80-102.5 (West 1997).

A minor has at least until his eighth birthday to file. Id. If the claimant is a mental incompetent or under other legal disability at the time the cause of action accrues, the action may be brought within two years from the removal of the disability or the period fixed by the applicable limitations period, whichever expires later. Colo. Rev. Stat. Ann. §§ 13-81-101 and 13-81- 103 (West 1997).

The limitations period for a wrongful death action is two years. Colo. Rev. Stat. Ann. § 13-80-102 (West 1997). A wrongful death cause of action accrues on the date of death. Colo. Rev. Stat. Ann. § 13-80-108 (West 1997).

Contributory or Comparative Negligence

Colorado has adopted by statute a modified form of comparative negligence. Colo. Rev. Stat. Ann. § 13-21-111 (West 1997). The statute says that the contributory negligence of a claimant will not bar recovery if the claimant’s negligence was less than the defendant’s negligence. Id. This could be interpreted to require the claimant to be compared individually with each defendant in a multi-defendant case. The courts, however, have ruled otherwise. The claimant will not be barred if his fault is less than 50 percent of the combined fault of all those who helped to cause the incident, including those non-parties whose fault is considered under Colo. Rev. Stat. Ann. § 13-21-111.5 (West 1997) (see Joint and Several Liability). Inland/Riggle Oil Co. v. Painter, 925 P.2d 1083 (Colo. 1996). In situations where a claimant’s contributory negligence does not bar recovery, such negligence will reduce any damages awarded in proportion to the amount of the claimant’s negligence. Id.

Joint and Several Liability

Generally, defendants in personal injury or wrongful death cases are not liable for an amount larger than that percentage of the judgment equal to the percentage of fault attributable to them. Colo. Rev. Stat. Ann. § 13-21-111.5 (West 1997). If, however, the defendants conspired to pursue a common plan or design to commit the tortious act, they will be held jointly liable. Id. The fault of non-parties is considered in the calculation of each defendant’s percentage of fault if they have settled or if a defendant has given notice that he intends to blame a non-party. Id.

Contribution

Defendants held jointly liable have a right of contribution. Colo. Rev. Stat. Ann. § 13-21-111.5 (West 1997). A right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability. Id. The joint tortfeasors’ relative degrees of fault must be used in determining their pro rata shares. Colo. Rev. Stat. Ann. § 13-50.5- 103 (West 1997).

A claim for contribution may be brought in the underlying action or as a separate action. Colo. Rev. Stat. Ann. § 13-50.5- 104 (West 1997). A separate action for contribution must be initiated within one year after the judgment becomes final. Id. If there is no judgment, the right of contribution is barred, unless the tortfeasor seeking contribution discharges the common liability within the applicable limitations period and initiates a contribution action within one year of payment. Id.

Vicarious Liability

In Colorado, a licensed physician performing medical services within a hospital is the principal rather than the agent. Therefore, hospitals are generally not liable for the negligence of independently-contracted physicians. Kitto v. Gilbert, 39 Colo. App. 374, 570 P.2d 544 (1977). In Kitto, contrary to the rule in most states, the physician rather than the hospital was held to be vicariously liable for the nurses working under his control and the anesthesiologist he selected. Id. A similar result was reached in Krane v. Saint Anthony Hospital Systems, 738 P.2d 75 (Colo. Ct. App. 1987), which refers to this as the “Captain of the Ship” doctrine.

Expert Testimony

Within sixty days after service of the complaint in a medical malpractice action, the claimant or his attorney must file a certificate of review, which states that an expert was consulted and that the expert is competent to express an opinion as to the alleged negligent conduct. Colo. Rev. Stat. Ann. § 13-20-602 (West 1997). To testify as an expert physician, a person must generally be licensed in the state and be familiar with the applicable standard of care as it relates to the subject of the claim. Colo. Rev. Stat. Ann. § 13-64-401 (West 1997). Unless the two fields of practice are similar, an expert in one medical subspecialty may not testify as to another subspecialty. Id.

Damage Caps

Damages for medical malpractice against a hospital or physician may not exceed $1,000,000 per patient, including any derivative claim by any other claimant. Colo. Rev. Stat. Ann. § 13-64-302 (West 1997). Of that $1,000,000, not more than $250,000 may be attributable to non-economic loss or injury. Id. However, if the court finds that the future economic damages exceed this cap, it may award damages in excess of the limit, if to do otherwise would be unfair. Id. This damage cap was held to be constitutional in Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993). The court also held that the medical malpractice damage cap superceded the general cap found at Colo. Rev. Stat. Ann. § 13-21-102.5 (West 1997), applicable to other types of cases. Id.

Punitive damages may not exceed the amount of actual damages awarded. Colo. Rev. Stat. Ann. § 13-21-102 (West 1997). However, the court may increase the punitive damage award to an amount three times the amount of actual damages if the defendant has continued the behavior or repeated the action which is the subject of the claim in a willful and wanton manner, or if the defendant has further aggravated the claimant’s damages by acting in a willful and wanton manner during the pendency of the action. Id. Punitive damages shall not be imposed when the injury results from the use of an approved drug or product used in accordance with standards of prudent health care professionals. Colo. Rev. Stat. Ann. § 13-64-302.5 (West 1997).

Statutory Cap on Attorneys’ Fees

Colorado does not place a limit on attorneys’ fees in a medical malpractice action.

Periodic Payments

In any medical malpractice action wherein the future damages award exceeds $150,000, the court must enter a judgment providing for the periodic payment of the future damages award. Colo. Rev. Stat. Ann. § 13-64-203 (West 1994). If the future damages award is $150,000 or less, the court may order that it be paid through periodic payments. Id. Damages for lost earnings are paid to the heirs if the claimant dies, but other payments can cease. Colo. Rev. Stat. Ann. § 13-64-206 (West 1994). Adequate security is required. Colo. Rev. Stat. Ann. § 13-64-207 (West 1994).

Collateral Source Rule

A claimant’s damages are reduced by the amount the claimant is compensated for his loss from sources for which the claimant did not contract and make payment. Colo. Rev. Stat. Ann. § 13-21-111.6 (West 1997). Collateral source payments do not reduce the judgment if the claimant contracted for and paid for those benefits, as in the case of medical insurance. Id.

Pre-Judgment Interest

For any actions filed after July 1, 1979, the court must award compound pre-judgment interest calculated from the date upon which the claim accrued if the claimant prevails at trial and requests such interest in his complaint. The interest rate is two percent above the federal reserve discount rate. Colo. Rev. Stat. Ann. § 13-21-101 (West 1997). Pre-judgment interest is deemed to be part of the claimant’s recovery, and therefore is counted toward the $1,000,000 limit on damages. Colo. Rev. Stat. Ann. § 13-64-302(2) (West 1997).

Patient Compensation Funds and Physician Insurance

Physicians and hospitals must achieve and maintain statutory financial responsibility. Colo. Rev. Stat. Ann. § 13-64-301 (West 1997). A physician establishes financial responsibility by maintaining commercial professional liability insurance coverage in a minimum amount of $500,000 per incident and $1,500,000 in the annual aggregate, or by possessing equivalent security, such as a surety bond, cash deposited with the commissioner of insurance, or self-insurance. Id. A hospital establishes its financial responsibility in the same manner except that a hospital’s annual aggregate must be at least $3,000,000. Id.

Immunities

Public entities are generally immune from personal injury actions. Colo. Rev. Stat. Ann. § 24-10-106 (West 1990 & Supp. 1997). However, a public entity (defined as including the state, counties, incorporated cities, towns, and every other political subdivision of the state organized pursuant to law) waives its sovereign immunity in actions for injuries resulting from the operation of a public hospital. Id. A claimant seeking recover from such an entity must file written notice with the public entity within 180 days after the date of the discovery of the injury. Colo. Rev. Stat. Ann. § 24-10-109(1) (West 1990 & Supp. 1997). Failure to comply with the notice requirement is a complete bar to a subsequent action. Id.

A public entity is liable for the cost of defense, settlement, or judgment incurred by its employees based on its employees’ acts or omissions within the scope of their employment. Colo. Rev. Stat. Ann. § 24-10-110 (West 1990 & Supp. 1997). A public entity, however, is not so liable if the acts or omissions of its employees were willful or wanton. Id.

Judgments entered against public entities or their employees are subject to damage limitations. The maximum amount that may be recovered from a public entity or its employee in any single occurrence is $150,000 per claimant and $600,000 per occurrence. Colo. Rev. Stat. Ann. § 24-10-114 (West 1994). This damage cap has been held to be constitutional. State v. DeFoor, 824 P.2d 783 (Colo.), cert. denied sub nom. Pacheco v. DeFoor, 506 U.S. 981 (1992).

Arbitration

Colorado does not mandate the reference of medical malpractice claims to arbitration. It does, however, authorize health care providers to include arbitration clauses in their contracts, so long as agreement to arbitrate is not a condition of service. The patient must have a right to rescind within 90 days. Colo. Rev. Stat. Ann. § 13-64-403 (West 1997).

Copyright © 1990-1998 McCullough, Campbell & Lane LLP. All Rights Reserved.
Revision Date: February 6, 1998