Options for when you’re injured by a health care professional
Going to the doctor can be a scary event. It can be enough of an ordeal when you know it’s going to go well. When it is a grim event like a triple bypass or some type of organ removal, there is more room for medical error. What options do we as patients have when doctors make mistakes?
As of 2017, Colorado paid out $43.9 million in medical malpractice lawsuits, which was actually an 11.2% decrease for the state. That equaled 24.4 lawsuits per 100,000 residents. There are still caps on non-economic damages, which are for non-tangible things like pain and suffering, loss of consortium, emotional distress, and the loss of enjoyment of life. We will get more into that in this article, but first let’s discuss what medical malpractice is, how Colorado approaches it and the options patients have when their medical procedures don’t go as planned.
What is medical malpractice?
Medical malpractice is when a licensed medical professional strays from what is considered to be the accepted standard of care in the field.
If your nurse, doctor, anesthesiologist or other health professional committed one of the acts listed below, you could have legal options:
- Conducted unneeded surgery
- Offered an incorrect diagnosis
- Performed poor follow-up care
- Discharged you early
- Misread or disregarded a critical lab result
- Failed to diagnose a condition
- Gave the wrong medication or dosage
If you think you might have a medical malpractice case, the first thing you need to do is prove negligence on the part of your health care provider. Also, remember that “health care provider” is a loose definition that can range from a doctor to a nurse to an anesthesiologist to a pharmaceutical company to an entire hospital.
What is negligence?
Negligence is the foundation of personal injury cases, and victims have to prove it if they want to receive damages. There are four elements that must be established.
Let’s say you went to the doctor with a spinal fusion that was breaking down. Your doctor decided that the pain traveling down your arms was actually a pinched nerve in your elbows, not in your neck at the C6-C7 spinal region. Later in the week, your fusion starts to break down completely, leaving you with intractable spinal pain that radiates down your arms. You can no longer pick up objects or use your hands.
- Duty: Once the doctor/patient relationship was established, the health care provider owed you a duty of care. This duty required your doctor to act like any other doctor would in that same situation, and he was required to follow accepted medical practices that are considered standard in the field. In this instance, you went to your doctor’s office, submitted personal information so that you could be admitted, and had a medical exam. This established the relationship and duty of care. The doctor was then obligated to act like any other doctor would in that situation.
- Injury: You must suffer an injury because of the actions of the physician. Here, you definitely became injured because of the doctor’s actions. To win a medical malpractice suit, your attorney must prove that your doctor directly caused your injuries.
- Breach: Once the duty of care is established, your physician must exercise reasonable care and treat you like any other doctor would. He must follow common procedures. Here, the duty was breached when the doctor misdiagnosed the fusion’s breakdown, which led to your intractable spinal pain and arms becoming useless.
- Damages: Your attorney must prove that the patient suffered economic and non-economic damages from the injury. In this instance, you accumulated significant medical bills that would not have been there without the fusion’s breakdown. You have further costs from missing work, as well as travel and lodging costs. You need additional surgeries to fix the fusion. You have significant non-tangible costs, such as pain and suffering, emotional distress, and loss of consortium.
For the medical professional to be found negligent, your attorney must show that his or her conduct fell below the “accepted standard” of medical care, so having experts testify will help as well.
Starting a medical malpractice case in Colorado
Each state has its own relevant local laws when it comes to medical malpractice. That’s why “tort reform” is such a topic of discussion every time election season rolls around. Tort reform refers to damage caps, personal injury cases and, most importantly, how much victims can recover when they sue medical institutions. It does not seem very important until you are the victim and it’s your pile of medical bills that need to be reimbursed.
In Colorado, plaintiffs (also known as victims) only have two years from the date of injury to file a suit against a medical professional. This is called the “statute of limitations.” Colorado follows the Discovery Rule, however, which means that the statute does not begin running until the plaintiff knew (or should have known) about the injury.
There are also a few other hoops through which to jump, such as providing a certificate of review within 60 days after the lawsuit is served upon the defendant. This certificate must state that the claim has been reviewed by someone with due authority and that it satisfies all pre-filing requirements.
Caps on damages in Colorado
Let’s discuss damages. There are two types of damages in personal injury cases:
- Non-economic (general) damages: loss of enjoyment, physical and mental pain or suffering, emotional distress
- Economic (special) damages: medical bills, lost wages, other tangible bills
- Punitive damages: damages designed to punish the health care provider for reckless and negligent acts
- Non-economic damages: $250,000 plus inflation
- EXCEPTIONS: if there is clear and convincing evidence that an increase is justified, damages for permanent physical impairment, or medical malpractice
- Medical malpractice: $1,000,000 total damages, of which no more than $300,000 may be for pain and suffering
- EXCEPTIONS: if it can be shown that $1,000,000 is an unfair award
Colorado has instituted caps on these types of damages. This means that no matter how emotionally swayed a jury is, they cannot award a plaintiff damages more than what the caps allow.
How to find the best medical malpractice attorney
It is very important to do a lot of research and choose a medical malpractice lawyer with many years of experience in medical negligence legal work. Medical malpractice law is highly specialized and requires an attorney with experience. This is because there is overlap between complicated medical and legal matters. There also are unique procedural issues that come up in medical malpractice cases.
Most attorneys in medical malpractice law practice one of two kinds:
- They defend doctors from medical malpractice suits, or
- They represent patients who have been injured
Read more and see where to find a lawyer in How to find the right medical malpractice attorney for your case.
Did you know that medical malpractice law varies by state?
Enjuris complete guide to medical malpractice
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