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Medical Malpractice Claims: Resources and Next Steps

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Overview of Medical Malpractice Cases

We place significant trust in doctors, nurses, surgeons and medical staff to care for ourselves and our loved ones. However, that trust is not always upheld. Sometimes, the actions of healthcare professionals lead to harm rather than good. Medical malpractice claims are among the most complex legal challenges a patient can face.

Medical malpractice occurs when a healthcare professional, such as a doctor, nurse or hospital, provides care that deviates from the accepted standard, resulting in harm or injury to the patient. It involves negligence, errors, or omissions in diagnosis, treatment, aftercare or health management that cause significant harm.

To qualify as medical malpractice, a plaintiff must prove that the healthcare provider:

  • Had a duty to the patient.
  • Breached that duty.
  • Suffered an injury directly caused by the breach of duty.

A review of “Twenty Years of Evidence on the Outcomes of Malpractice Claims” found that even with “strong evidence of medical negligence,” only 50% of Plaintiffs won in their claims at trial.

Colorado Burden of Proof

In Colorado, the burden of proof in medical malpractice cases lies with the plaintiff (the person filing the claim). The plaintiff must prove, by a preponderance of the evidence (more likely than not or greater than 50% likely) each of the following elements:

  1. Duty
    The healthcare provider owed a duty of care to the patient. The plaintiff must first prove that a valid doctor-patient relationship existed. This means the defendant had an obligation to provide medical care to the plaintiff. Without this relationship, there is no duty of care and a malpractice claim cannot proceed.
  2. Breach of Duty
    The healthcare provider breached that duty by failing to meet the accepted standard of care. The “standard of care” refers to the level of care that a reasonably competent healthcare professional with similar training and experience would provide under similar circumstances. This is established through expert testimony from medical professionals in the same field as the defendant.

    Colorado generally requires plaintiffs to file a Certificate of Review within 60 days after service of the complaint, certifying that a qualified expert has reviewed the case and determined that the claim has substantial justification. The expert must be a healthcare professional with expertise in the relevant field of medicine (e.g., surgery, cardiology, nursing) who can testify about the standard of care in that field and establish a direct link between the defendant’s deviation from the standard of care and the patient’s harm.

    Note: Securing an expert for a medical malpractice case is both difficult and expensive. Plaintiffs must first locate a qualified expert willing to review the case and testify regarding the applicable standard of care. Even if this hurdle is overcome, the cost of expert witness fees for medical-legal work can be exorbitant, often reaching or surpassing $100,000.

  3. Causation
    The breach directly caused harm or injury to the patient. This means establishing a clear link between the defendant’s actions (or inaction) and the harm suffered by the plaintiff. This element is often the most challenging to prove, as there must be evidence that the defendant’s mistake or failure to act caused or significantly contributed to the plaintiff’s injury, rather than some other factor.
  4. Damages
    The patient suffered actual damages as a result of the breach. Damages can include physical injury, emotional distress, lost wages, medical expenses, diminished quality of life and loss of home/caretaking services. The plaintiff must prove not only that an injury occurred but that it was caused by the malpractice and resulted in compensable harm.

A medical malpractice claim cannot proceed legally if the plaintiff fails to prove any of the above elements by a preponderance of the evidence.

Colorado Limitations on Damages

Colorado limits damages recoverable in medical malpractice cases, particularly regarding non-economic damages (e.g., pain and suffering, emotional distress, loss of enjoyment of life). These caps are designed to limit compensation for these damages, regardless of the severity of the injury and can significantly impact the total recovery. 

Medical Malpractice Non-Economic Damage Caps

Until recently, the cap on non-economic damages in medical malpractice cases was $300,000. Effective January 1st, 2025, this cap was increased to $415,000 and set to increase to $875,000 over the next 5 years for non-economic loss in medical malpractice actions.

Non-economic Damage Cap Amount by Year

  • $415,000 effective January 1, 2025
  • $530,000 effective January 1, 2026
  • $645,000 effective January 1, 2027
  • $760,000 effective January 1, 2028
  • $875,000 effective January 1, 2029

The cap is determined by the date the claim accrues and is subject to future inflation adjustments.

Wrongful Death Non-economic Damage Caps

For medical malpractice actions involving wrongful death, the non-economic damages cap is currently $300,000. It will increase to $1,575,000 by January 1, 2029. 5-year phase, increasing $255,000 a year until January 1, 2029. Thereafter, the caps will be adjusted every two years for inflation.

Wrongful Death Increase Amount by Year

  • $300,000 effective January 1, 2025
  • Specific yearly increases post-2025 are set to reach $1,575,000 by January 1, 2029.
Effective DateWrongful Death Non-Economic Cap
Jan. 1, 2025$300,000
Jan. 1, 2026$555,000
Jan. 1, 2027$810,000
Jan. 1, 2028$1,065,000
Jan. 1, 2029$1,320,000
Jan. 1, 2030$1,575,000

While the noneconomic damage cap increases are based on the filing date, the wrongful death is based on the accrual date.

Imposing these damage caps means that medical malpractice plaintiffs may be unable to recover the full compensation for their pain, suffering and other non-economic harms. This limitation can make it more difficult for victims of severe or permanent injuries to obtain compensation that reflects the full extent of their suffering, especially in light of the significant costs associated with litigating a medical malpractice claim.

Colorado Statute of Limitations

The statute of limitations for medical malpractice claims dictates the time frame within which a plaintiff must file a lawsuit after an alleged act of malpractice. If the plaintiff fails to file their claim within this period, they are generally barred from pursuing legal action.

In Colorado, the statute of limitations for medical malpractice claims is typically two years from the date of the injury or from the date the injury was discovered (or should have been discovered) with reasonable diligence. In other words, the plaintiff must file their lawsuit within two years of either:

  1. The date of the alleged malpractice (when the negligent act occurred), or
  2. The date when the plaintiff reasonably should have known that the malpractice caused an injury.

A plaintiff may not realize they were injured by malpractice immediately after the event (for example, in cases where the injury or harm is latent and only becomes apparent over time).

Note: Colorado law provides a three-year absolute cap (the “statute of repose”) for filing medical malpractice lawsuits, even if the injury is discovered later. This means no lawsuit can be filed more than three years after the alleged act of malpractice, regardless of when the injury was discovered.

While the two-year statute is the general rule, there are exceptions and tolling provisions that may extend or pause the statute of limitations in certain circumstances, such as:

  • Minor Plaintiffs: If the patient is a minor (under 18) at the time of the malpractice, the statute of limitations may be extended. In such cases, the lawsuit can typically be filed within two years of the child turning 18, or within three years from the date of the malpractice, whichever is later.
  • Foreign Objects Left in Patient’s Body: If a foreign object (e.g., surgical instruments, sponges) is left inside the patient’s body after surgery, special statutory exceptions may apply in cases involving foreign objects left in the body, fraudulent concealment or other circumstances recognized by Colorado law.

Because of these complexities, it is essential for individuals who suspect they have been harmed by medical malpractice to consult with a legal professional as soon as possible to ensure their claim is filed within the appropriate time frame.

Colorado Alternative Avenues to Litigation

While filing a lawsuit may seem like the most direct course of action, there are several other avenues through which you may seek resolution, hold healthcare professionals accountable and potentially make a positive impact on the broader healthcare system.

  1. Filing a Complaint with the Colorado Department of Regulatory Agencies (DORA)

    • Who: If your concern involves a physician or other licensed healthcare professional.
    • How: Submit a formal complaint using DORA’s online complaint form:
      Colorado DPO File a Complaint
    • What DORA Can Do: DORA investigates complaints, can take disciplinary action and ensures the healthcare professional meets regulatory standards. DORA’s role is not to provide compensation but to protect the public and ensure licensed professionals adhere to appropriate standards.

  2. Filing a Complaint with the Colorado Department of Public Health and Environment (CDPHE)

    • Who: If your claim involves a hospital, clinic or other healthcare facility.
    • How: File a complaint with the CDPHE using their Health Facilities Complaint Form: Colorado Health Facilities Complaint
    • What CDPHE Can Do: Investigate issues related to patient safety, cleanliness, care protocols and compliance with state laws. They may also recommend corrective actions or penalties against the healthcare facility. The CDPHE’s role is not to provide compensation but to protect the public and ensure licensed entities adhere to appropriate standards.

  3. Contacting Your Local Officials for Legislative Change

    • Who: If your concern with the healthcare provider relates to a broader or systemic issue such as deficiencies in care, ethical practices or patient safety.
    • How: You can visit Colorado’s official state legislature website (https://leg.colorado.gov/legislators) or other resources like https://www.govtrack.us/ to find the contact information for your local senator or representative.

Second Opinions

Medical malpractice cases can be complex and nuanced. We strongly encourage you to seek a second opinion about the merits of your potential claim. A second opinion from a different attorney or law firm specializing in this area can help ensure you receive a thorough analysis.

Medical Malpractice FAQ

Our injury lawyers support those suffering from the following as a result of medical negligence:

  • Bedsores
  • Blood clot injury/pulmonary embolism
  • Spinal epidural abscess
  • Chiropractic injury
  • Coma caused by negligence
  • Compartment Syndrome
  • Epidural hematoma malpractice
  • Healthcare-associated infections
  • Hemorrhagic and ischemic strokes
  • Gallbladder surgery malpractice
  • Kidney damage
  • Hospital administrative negligence
  • Hydrocephalus malpractice
  • LASIK errors
  • Intubation malpractice
  • Locked-in syndrome
  • Medical miscommunication
  • MRI malpractice
  • Brain injury
  • Stevens-Johnson Syndrome
  • Cauda Equina Syndrome

Victims of medical malpractice can receive compensation for various damages – however, it’s important to note that the availability, specifics, and amount can differ based on the jurisdiction and individual circumstances. Damages may include:

  • Medical expenses and rehabilitation costs
  • Lost wages and future earnings
  • Pain and suffering
  • Emotional distress
  • Loss of enjoyment of life
  • Punitive damages if the actions are proven exceptionally negligent

Consult with our medical malpractice attorneys to ensure you receive the compensation you deserve.

A lawyer’s counsel and support are crucial in pursuing a medical malpractice case. At Ramos Law, our attorneys can help in the following ways:

    • Case evaluation: We assess the details of your case to determine if you have a valid claim, considering factors like the standard of care, breach of duty, causation, and damages.
    • Investigation: Our medical malpractice lawyers thoroughly investigate the evidence supporting your case. It may involve obtaining medical records, consulting with expert witnesses, and collecting other relevant documentation.
    • Expert witnesses: We work alongside medical experts who can testify to the standard of care and whether the provider’s actions strayed from the accepted medical practice, leading to harm. 
    • Legal strategy: Our team identifies the strongest arguments, anticipates potential challenges, and formulates a plan to present your case effectively.
    • Navigating complex legal procedures: We’re familiar with the intricacies of the legal system and can ensure that all necessary documents are filed correctly and deadlines are met.
    • Negotiation: Many medical malpractice cases are resolved through negotiation and settlement. Our lawyers can negotiate with the opposing party or their insurance company to reach a fair settlement that compensates you for your damages.
    • Representation: If negotiation doesn’t settle, we’re fully prepared to represent your case before a judge and jury, presenting evidence, examining witnesses, and arguing legal points.
    • Assessing damages: Our medical malpractice lawyers can help calculate the damages you have suffered, considering economic and non-economic losses. 
  • Legal advice: Throughout the process, we provide legal advice, explain your rights, and advocate for your best interests. We’re your guide and advocate, helping you navigate the complexities of the legal system.
  • Support: Dealing with the aftermath of medical malpractice can be emotionally challenging. Our team provides support, keeps you informed about the progress of your case, and works to minimize the stress associated with legal proceedings.

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