What Constitutes Medical Malpractice?

Mistakes and errors happen every day. Unfortunately, when a medical professional or facility makes one, the outcome can be physically disabling, emotionally devastating, or even fatal. In most cases, these mistakes are not intentional or the result of malice. However, they can result from negligence or carelessness by a medical provider, otherwise known as medical malpractice.

What Is Medical Malpractice?

Medical malpractice occurs whenever a health care provider does not follow the recognized “standard of care” to treat a patient. The “standard of care” is accepted as what a reasonably prudent medical care provider would or would not do under similar circumstances.

If a provider’s negligence causes injury or damages to a patient, the patient could file a medical malpractice claim.

How Does Medical Malpractice Happen?

A patient’s safety and health can be put at risk in any medical hospital, doctor’s office, nursing facility, clinic, treatment facility, or home health situation. Below are several ways a doctor, therapist, physician’s assistant, nurse, home health nurse, aide, or medical technician could commit malpractice:

  • Failure to correctly diagnose a condition or disease.
  • Misdiagnosis of a condition or disease.
  • Taking too much time to diagnose or treat a disease or condition.
  • Misreading lab tests.
  • Failing to prevent infections.
  • Improperly prescribed medications, incorrect medication dosages, and other drug errors.
  • Administering the wrong medication or treatment.
  • Patient abuse or neglect.
  • Surgical or Anesthesia errors.
  • Treatment of a patient without proper, informed consent.
  • Failure to correctly record and interpret medical records.

You may also file for damages against the hospital, treatment center, or nursing home.

Suppose you or someone related to you has been injured due to the negligence of a medical care provider. In that case, the best decision you can make is to hire an experienced Colorado personal injury lawyer to answer your questions and advise you of your legal options so you can focus on your recovery.

Examples of Medical Malpractice

Anesthesia Errors

An anesthesiologist is responsible for recommending the best type of anesthesia for a medical procedure to render the patient unconscious, relax the muscles, and prevent pain from signaling the brain.

Anesthesia errors can include:

  • Too little or too much anesthesia.
  • Failing to monitor the patient while under anesthesia.
  • Allergic reaction to the anesthesia.
  • Unsanitary IV equipment.
  • The uncontrolled flow of IV fluids.
  • Failure to manage pain after surgery.

Negligence occurs when medical professionals and staff do not correctly assess the risk of anesthesia used on a patient, fail to monitor patients under and after anesthesia, or fail to inspect or control anesthesia equipment.

Birth Injuries

A baby is a blessing in a couple’s life. The medical professionals and staff that attend to the baby and mother in the delivery room are responsible for performing their duties without causing undue harm. A birth injury can result from their negligence when medical duties are not performed correctly, and the child, mother, or both are harmed.

Serious birth injuries may include:

  • Brain damage.
  • Spinal cord injury or paralysis.
  • Cerebral palsy.
  • Fractures or broken bones.

In addition to the cost, birth injuries can have lifelong consequences on a child’s development.

Blood Clots

A physician is responsible for understanding the risks and dangers of blood clots forming. They are also responsible for preventing them from forming and for monitoring and treating them if they do form. Blood clots can form in veins, arteries, brain, heart, or lungs and lead to:

  • Birth injury.
  • Kidney failure.
  • Heart attack.
  • Stroke
  • Death

Roughly 5-10% of hospital fatalities in the US are attributable to blood clots [1]. Approximately 70% of these deaths could have been prevented with proper care. Medical malpractice may occur when doctors fail to diagnose, take precautions to prevent, or treat blood clots.

Brain Injuries

Medical professionals and staff are responsible for diagnosing, preventing, treating, monitoring, and following up with patients during their care. When that responsibility causes errors in diagnosis, medication, anesthesia, surgery or equipment, or facility conditions, it can result in something as serious as a brain injury.

Examples of brain injuries that can occur in a healthcare facility include:

  • Anoxia results from all oxygen being cut off from the patient’s brain and results in coma, permanent brain damage, or death.
  • A concussion is an injury to the brain caused by impacts to the head that shake or twist the brain.
  • Hypoxia results from oxygen being restricted to the patient’s brain, leading to brain cell death.
  • Penetration injury. This occurs when external objects enter the brain and cause permanent brain damage.

Diagnostic Errors

Patients rely on a medical doctor to perform an examination, order tests, analyze their symptoms, and diagnose the cause of their illness or pain. A patient may suffer when a doctor fails to do this and provides an improper diagnosis, There are almost 100,000 deaths in the US annually due to diagnostic errors [2].

Diagnostic errors can include:

  • Making the wrong diagnosis.
  • Making a diagnosis too late to treat the condition.
  • Failure to diagnose.
  • Failure to obtain the patient’s medical history.
  • Failure to test.
  • Misreading or miscommunicating a test result.

Medical malpractice may occur when a patient suffers a severe illness, life-threatening emergency, or fatality due to a doctor’s diagnostic error.

Hospital Errors

The administration is responsible for hiring and supervising qualified employees, maintaining the equipment and hospital facility, and correctly completing, filing, and safeguarding patient paperwork.

  • Hospitals can be negligent when hiring unlicensed or unqualified employees. They may also be held liable for failing to monitor employee certifications, training, and continuing education requirements.
  • Hospitals can also be found negligent if they fail to establish or enforce safety protocols and practices for all staff and patients.
  • Improper documentation of medication, procedures, intake, or discharge instructions can have severe consequences for a patient.

Medication or Pharmacy Errors

Physicians, nurses, and pharmacy professionals are responsible for prescribing, filling, and administering medications in the appropriate dosages and methods and to the correct patient. Patients can experience an allergic reaction, overdose, brain damage, or even death when that fails to happen, leading to a claim for medical malpractice.

Common medication or pharmacy errors include:

  • The physician prescribed or the pharmacy filled the wrong drug.
  • Too little or too much medication being administered to the patient.
  • Incorrect dosage of the drug.
  • Failure to provide proper use instructions to the patient

Nursing Malpractice

A nurse has the responsibility to provide professional care for their patients by following the doctor’s instructions, administering medications, providing information or supplies to her patients or the doctor, and treating their patients in a dignified manner. They are subject to medical malpractice claims when they fail to do so.

Surgical Errors

Patients expect surgeons and operating room staff to be held to the highest standards of the medical profession since their lives are literally in their hands. When a surgical error results in injury, incapacity, or fatality, negligence is typically the cause.

Surgical errors that have been found in medical malpractice suits include:

  • Anesthesia errors.
  • Equipment failure.
  • Careless incisions.
  • Failure to perform standard sanitary procedures.
  • Hospital record errors result in operating on the wrong patient or body part.
  • Improper monitoring of patient’s vital signs.
  • Leaving medical tools inside the patient.

When some medical error occurs, and you or your loved one suffers an injury, you may be unsure whether the medical professional, the medical staff, the equipment, or the hospital administration is to blame. Let your personal injury lawyers with experience in medical malpractice cases help you determine who’s responsible and hold them accountable. Contact Help in Colorado for a free consultation.

How to File a Claim of Medical Malpractice

Filing a claim for medical malpractice requires the following steps:

  1. The plaintiff or their lawyer must file a medical malpractice complaint in a Colorado Court of Law.
  2. The sheriff serves the defendant with the complaint.
  3. Within 60 days of the filing of a claim of medical malpractice, your attorney must file a Certificate of Review in Colorado. The review certificate must show that the plaintiff’s injuries were evaluated by a third party, who verified the existence of the injuries and the possibility those injuries could be due to medical malpractice.
  4. The accused had the right to file an answer to the complaint within twenty-one days of being served. C.R.C.P. 12 (a) (1)
  5. Before the trial starts, the plaintiff and the defendant can share information through discovery. Discovery may include requests for documents, depositions, and interrogatories.
  6. Both parties can agree to a settlement at any time before trial. If the parties fail to settle, the case will proceed to trial.
  7. The plaintiff or his lawyer presents all evidence and testimony to a judge or jury during the trial to obtain a ruling. Both the defendant and plaintiff will present expert witnesses to show what standard of care was required, whether the medical professional was negligent, and whether that negligence caused the plaintiff’s injury.
  8. Once both parties have argued their case and given closing arguments, the judge and jury must consider all the evidence, decide which party is the most credible, and provide a verdict.
  9. Once the verdict has been delivered, the judge awards damages.

Colorado Statute of Limitations for Cases of Medical Malpractice

The statute of limitations for a case of medical malpractice allows an individual two years to file a lawsuit, beginning from when harm was inflicted or discovered that a medical error caused you harm. The statute does not allow case filings past three years unless:

  • The defendant covered up or concealed malpractice.
  • A surgery tool or some other object was left behind in the individual’s body after the medical procedure.
  • The individual was not aware of the malpractice and resulting injury, and could not have discovered them.
  • The lawsuit is brought on behalf of a minor child under six years of age at the time of the malpractice. If this is the case, then you must file the suit before the child’s eighth birthday.

Medical malpractice is often complex and challenging to prove. The legal team at Help in Colorado specializes in helping injured people confront medical professionals and insurance companies to get financial compensation, thus helping them recover and move on with their lives.

Proving Medical Malpractice

You may feel that your medical care did not go as well as you expected, and you might be unhappy with the results. However, that is not enough to win a medical malpractice case. You must prove that the medical facility, medical professional, medical staff, or medical administration was negligent in performing their duties, and the negligence resulted in you sustaining an injury.

To win a case of medical malpractice in Colorado, you must prove:

  • Duty of care by the medical professional. The plaintiff must demonstrate that they and the medical professional had an agreed-upon working relationship before the injury occurred. Additionally, the plaintiff must provide evidence of any other medical professional’s reasonable standard of care under the same circumstances.
  • A violation of that duty. The plaintiff must provide evidence that the medical professional did not provide the expected standard of care because they did something wrong or neglected to do something.
  • Injury as a result of the medical professionals action (or inaction). The plaintiff will be required to submit evidence of their injury, and in many cases will need to be able to establish proof of a long term impact as a result of the injury.
  • The breach in the standard of care was the cause of the plaintiff’s injury. The plaintiff will need to provide evidence, either written or by expert testimony, that the medical professional’s failure to adhere to their duty of care caused the plaintiff’s injury.

What Kind of Compensation Should You Expect from a Medical Malpractice Case?

When a personal injury occurs due to a medical professional’s negligence, the injured party can ask for compensatory damages, which include monetary damages and non-economic damages.

Monetary damages cover:

  • Lost wages for the time the accident occurred and recovery time if the plaintiff was unable to work.
  • Future wages if the plaintiff will not be able to return to the same job in the future due to their injury.
  • Medical bills for any additional procedures the plaintiff may require.
  • Prescription medication costs of any medicines the plaintiff will need to help with recovery.
  • Costs of medical equipment the plaintiff may need to aid in the recovery process.
  • Travel expenses the plaintiff may need to get to and from medical appointments or to see specialists.

Non-economic damages cover things like:

  • The pain or suffering the injured party endured because of the medical malpractice.
  • The cost of funeral expenses if wrongful death occurs due to the medical malpractice.
  • A lesser quality of life for the injured party.
  • Expenses to help with everyday activities the injured party may no longer be able to perform, such as housework, laundry, or taking care of young children
  • Loss of guidance if a parent died due to their injuries

An individual’s right to compensation is limited by Colorado’s medical malpractice laws, such as:

  • Colorado law places a total compensatory cap on damages of $1,000,000 [3].
  • Colorado imposes an absolute cap on non-economic damages of $300,000 that an injured party can receive.
  • Colorado also holds to modified comparative negligence. Accordingly, if a person is over fifty percent responsible for the injury, they may not be entitled to recovery.

Contact Help in Colorado

When an individual is injured due to the negligence or carelessness of a medical provider, they deserve justice and the maximum compensation allowed. Ross Ziev is a Denver personal injury attorney specializing in holding at-fault parties accountable for their actions. He and his firm have successfully obtained millions of dollars in settlements and favorable verdicts. Thanks to our contingency fee arrangement, you don’t have to pay us anything until we win your trial!

Medical malpractice can be emotionally draining, physically painful, and confusing for most people. If you are a victim of medical malpractice, you should be focusing on getting better; not stressing about your legal claim. An experienced personal injury attorney, such as Ross Ziev, can make sense of the medical jargon, explain everything to you, prepare and file the legal paperwork, and steer you through the legal proceedings to a successful outcome.

Contact Help in Colorado online, visit our offices at 6795 E. Tennessee Ave. #210, Denver, CO, 80224, or call us at (303) 351-2567.


[1] https://www.medscape.com/viewarticle/898057

[2] https://malpracticecenter.com/medical-malpractice-facts/

[3] All numbers as of May 2022

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