Medical Malpractice Lawsuits

Medical Malpractice is one of the Most Complex and Difficult Types of Personal Injury Law

Medical Malpractice: A General Overview

Common examples of medical malpractice include, but are not limited to:

• Causing infection through unsanitary practices.
• Various failed treatment methods and procedures.
• Emergency room errors.
• Mistakes in the prescription making.
• Poor follow-up or aftercare.
• Premature discharge.
• Miscommunication or misreading of lab results, or failure to order appropriate testing.
• Birth injuries.

Medical malpractice is a form of professional negligence that occurs when a negligent act or omission causes an injury to a patient—for example, disregarding or not taking appropriate patient history, not providing necessary treatment, etc.

Medical malpractice cases arise when health care providers or organizations, such as doctors, nurses, dentists, chiropractors, psychologists, physical therapists, hospitals, clinics, laboratories, and lab techs, make an avoidable mistake. They may also arise from putting in place or failing to correct an error-prone environment that leads to serious or fatal injury. In essence, every instance when a healthcare provider provides care that is deemed to fall below what a reasonable provider with the same background would have provided may give rise to claims of medical malpractice.

When Does a Medical Malpractice Claim Arise?

To pursue a medical malpractice claim, you must first show that certain conditions are met. These can be briefly summarized as follows:

• The defendant/healthcare professional or organization was required to adhere to a particular standard of care.
• The standard of care in question was breached, meaning that the defendant proceeded to acts or omissions falling short of the requirements set by the said standard.
• You sustained an injury.
• A causal link exists between the act or omission on the part of the defendant and the injury that you sustained, i.e. it was this breach of the standard of care that actually caused your injury.

One of the main aspects of such a claim, namely the existence of fault on the part of the healthcare professional involved in a medical malpractice case, stems from a violation of the standard of care owed. It may seem strange that there is no precise or definitive medical definition for the said standard of care. In practice, it is established on the basis of the concept of negligence in the legal sense. Put as simply as possible, negligence generally refers to a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. Consequently, the law acknowledges that certain medical standards recognized by the profession dictate what would be considered acceptable medical treatment by reasonably prudent healthcare professionals under like or similar circumstances.

Determining the necessary elements for putting forward a medical malpractice claim in Colorado are in place is anything but an easy task. It requires familiarity with the applicable legislation, sound knowledge of the relevant case law, and an understanding of the practicalities of pursuing such a claim. This is why you need an experienced personal injury lawyer  to help you with your claim. At a time when you are struggling with your health, you should be focusing on getting better; not dealing with insurance companies, complex legal issues, paperwork, and deadlines.

If your circumstances concern actions or omissions on the part of a healthcare professional or organization that caused you or a loved one injury or harm, do not hesitate to contact us for a free initial consultation. We will go over the particulars of your situation with you and advise you regarding your options, as well as determine how we may assist you in getting the compensation you deserve. Ross Ziev and the legal team at Legal Help in Colorado have acquired millions of dollars in settlements and jury verdicts for our clients. Our combined years of experience drastically increase your chances of success in getting a fair settlement—and you won’t have to pay us anything out of your pocket until we have won your case.

Key Considerations

When considering whether you may have a claim and how to proceed with it, one of the first things you must remember is that medical malpractice cases are extremely complex, as is the relevant legal framework that governs them. Pursuing a medical malpractice lawsuit in Colorado involves strict adherence to extensive procedural rules that apply. It also requires meticulous attention to medical records that have to be carefully collected, examined, and assessed, coupled with a rather substantial “burden of proof” that has to be met on your part.

Bearing in mind the above, three aspects that you will need to consider very carefully are:

• The filing deadlines set by the statute of limitations in Colorado.
• Our State’s “certificate of review” requirement.
• The applicable cap on medical malpractice damages.

Statute of Limitations

The statute of limitations for medical malpractice cases in Colorado stipulates that a related lawsuit must be filed within two years from when you suffered harm or when you discovered—or could reasonably have been expected to discover—that you were harmed by a medical error [1].

The law also sets out that you must get your case filed within three years of the alleged malpractice, irrespective of when it was discovered. There are, however, some exceptions, such as if the defendant concealed the malpractice, if a surgical instrument or some other foreign object was left in your body after a medical procedure, or if you did not know about both the malpractice and your resulting injury, and you could not have discovered both, even with the exercise of reasonable diligence and concern.

Furthermore, any lawsuit brought in Colorado on behalf of a minor who was younger than six years of age at the time has to be filed before the child’s eighth birthday. There are also specific rules in place for older minors (under the age of 18) and injured patients who are mentally disabled.

The Certificate of Review

In the context of actions against licensed professionals for negligence, including cases of alleged medical malpractice, plaintiffs in Colorado have to file a so-called “certificate of review.” The purpose of this document is to prevent the filing of frivolous actions that have no basis in fact. It is a type of supporting proof that accompanies such actions, signed and filed by your attorney.

You must submit a certificate of review within 60 days of filing your lawsuit unless you can show the court that there exists a good cause for an extension. In the certificate itself, it must be declared that:

• Your lawyer has consulted with a qualified expert who has reviewed the facts of the case, including any records, documents, and other materials that the professional has found to be relevant to the allegations of negligent conduct (including medical records).
• Based on the review of such facts, the expert has concluded that the lawsuit does not lack substantial justification. In other words, the medical expert who will sign off on the certificate must state that, in their opinion, the defendant(s) did, indeed, demonstrate negligence.

In actions alleging professional negligence on the part of a physician, the certificate of review declares that the person consulted meets the applicable requirements. These include the need for the expert in question to be a licensed physician in the same or a similar specialty as the defendant.

In cases where there is more than one defendant, a separate affidavit of review will be submitted for each one of them. In addition to the above, you will have to file an affidavit for the hospital or other company that employs any of the defendant healthcare professionals, even if the employer isn’t named as a defendant in the lawsuit.

As you can gather, these are all matters calling for expert legal knowledge, precision, and attention to detail. For instance, failure to file a lawsuit within the prescribed time limit will almost certainly result in the court refusing to consider your claim, so it is crucial to ensure compliance with the statute of limitations. Likewise, not filing a certificate of review in cases where one is required will most likely result in the dismissal of your medical malpractice lawsuit.

Therefore, it is vital that you work alongside a seasoned professional who possesses the required expertise and skills, and who will ensure that all such necessities will be met.