By: Danny Foster and Nate Bartell
(As of July 1, 2019, there are major changes in how medical malpractice claims will be handled in Colorado. Any failure to understand these changes could have significant consequences to you. The following is a brief summary of the newly enacted law, Colorado Revised Statute C.R.S. §§ 25-51-101 et seq.)
When scheduling a medical procedure, patients never expect to be made worse off from the procedure than they were before. Most physicians and hospitals do an excellent job of providing quality medical care to us and to our loved ones. Nevertheless, there are times when the physician or hospital provide negligent care that can lead to devastating physical injuries, impairment, and even death. This tragedy is only compounded by the financial impact caused by these cases. Unfortunately, it is very difficult to obtain financial recourse when negligence occurs and these cases are fiercely defended by the insurance companies, making even the most obvious cases of malpractice expensive and complicated to resolve.
Part of the problem stems from a statutory provision that requires settlements in medical malpractice cases be reported to the Colorado medical board for further investigation and a hearing. See C.R.S. § 10-1-120. The threat of being reported to the Colorado medical board deters doctors accused of medical malpractice from settling with patients, leading many malpractice cases to the courthouse. The incentive for doctors to avoid reporting requirements causes patients to miss out on potential settlement opportunities and spend both time and money in pursuing justice and restitution.
In an effort to align doctors’ and patients’ incentives in the likelihood of a potential medical malpractice claim, the Colorado legislature passed the Colorado Candor Act (C.R.S. §§ 25-51-101 et seq.). Under the Candor Act, a doctor involved in an “adverse health care incident” may enter into an open discussion of settlement with the affected patient. Because the settlements agreed to under the Candor Act are privileged and confidential, physicians do not need to report to the Colorado medical board. This creates an incentive to settle with patients quickly, rather than litigate their case to the end.
But, here’s the catch: in order for medical malpractice settlements to be protected under the Candor Act, the doctor or health facility must notify their patient of their intent to enter an open discussion of settlement within 180 days after the date that the doctor knew or should of known of the incident leading to a potential medical malpractice claim. If the patient or his/her attorney makes the initial contact or sends a demand letter for settlement, it is likely that the protections afforded by the Candor Act would be nullified, thereby removing the doctor’s incentive to settle.
This notice requirement is problematic in several ways. For one, the requirement that the doctor or health facility notify the patient of their intent to settle, rather than the other way around, puts potential claimants of medical malpractice in a difficult position. If patients feel that a medical procedure went awry, any notice sent to their doctor stating as much could jeopardize their ability to effectively settle under the Candor Act. Additionally, medical malpractice harm can go undiscovered for months or even years – if a doctor has no reason to believe that a medical mistake was made, any damage found after the 180-day mark removes a potential settlement from the Candor Act’s protection. Furthermore, if a medical malpractice claim is to be made against a government entity, the Colorado Government Immunity Act requires that the claim be made within 180 days – it is unclear how a patient making such a claim can comply with both the Candor Act and the Colorado Government Immunity Act. Each of these scenarios potentially complicates the situation for patients looking to benefit from settlement under the Candor Act. Because this is a brand-new law it will be interesting to see how these situations play themselves out in the months and years to come.
Our advice? If you fear you’re a victim of medical malpractice, don’t call the doctor or hospital that you suspect is at fault – call an attorney first. Your attorney will help navigate the legal complexities of your case, including the pursuit of settlement under the Colorado Candor Act.