FAQs - Medical Malpractice

What is medical malpractice?

What standards of conduct?

What about healthcare professionals besides physicians?

This sounds pretty complicated. How do you decide if a physician or other healthcare provider is negligent?

My mother is in the hospital now and I think she is receiving substandard care. Should I consult with a lawyer?

So does that mean that if the outcome is bad that I have a case?

What kinds of mistakes constitute negligence?

Well, I had a bad outcome and a lawyer told me that the doctor's negligence was "obvious." He still refused to take my case, though, because he said I'm better now. What's the deal?

So what constitutes a "significant physical injury?"

Isn't there some way to get around this law?

I think I have a case, but I don't have enough money to pay a lawyer.

What are litigation expenses? Are they different than the attorney's fees?

Well, if I have a really obvious case of negligence, and I'm injured severely, can't I just file suit and proceed without expert witnesses?

Where do you find expert witnesses?">Where do you find expert witnesses?

I think I was injured by a doctor in a hospital. Can I sue the hospital?

I heard that some hospitals are owned by the government and they can't be sued. Is that correct?

What if I am hurt in a military hospital. Can I still file a claim?

I am in the military. If I am injured due to negligence in a military hospital can I file a claim?

What if my child is injured due to negligence. Can she file suit?

Are cases involving children treated differently in court than cases involving adults?

1. What is medical malpractice?

This is an excellent question. Many people, including some lawyers, and even some doctors, do not fully understand the nature of the "malpractice" claim. First, we try not to use the term "malpractice," because the prefix "mal" implies that a healthcare provider acts "maliciously," or is a "bad" person. In fact, the prefix "mal" comes from the Latin "malus," which means "bad." However, under Colorado law, a claim against a physician, nurse, chiropractor or any other healthcare provider is typically based on "negligence," or carelessness, meaning the doing of an act that a reasonable professional would not have done, or the failure to do an act that a reasonable professional would have done, under the same or similar circumstances. The focus is not on the healthcare providers' character or intent, but on whether professional standards of conduct were met.

2. What standards of conduct?

Physicians undergo many years of education and training, beginning in medical school and continuing through internships, where they are exposed to many different areas of medicine, and a residency, in which the physician becomes trained in a particular field, such as surgery, internal medicine, neurology, etc. In addition, some physicians will go through a more advanced residency or fellowship program for advanced training in a particular field. During training and residency, the physician is exposed to the standards and guidelines that govern the practice of medicine. This exposure occurs through textbooks, observation and hands-on practice under the supervision of trained specialists. Even after the physician is licensed and has completed training, her education continues through attending continuing education programs and review of pertinent literature. Many agencies, including certification organizations, hospitals and governmental entities produce guidelines that govern how specific procedures and treatments should be carried out. All of these sources, and others, go into determining what doctors and lawyers call the "standard of care" for the practice of medicine. A breach of the "standard of care" constitutes "negligence."

3. What about healthcare professionals besides physicians?

Other healthcare professionals also commit negligence if they violate the "standard of care." However, the "standard of care" for, let's say, a nurse, may (and usually does) differ from the "standard of care" for a doctor. That is because nurses undergo different training than doctors do, and have different responsibilities. The theory of negligence, though, is similar. Any healthcare professional can be negligent for violating the "standard of care" that applies to her particular profession, be it nursing, physical therapy, physician assistant, etc.

4. This sounds pretty complicated. How do you decide if a physician or other healthcare provider is negligent?

It is complicated. In order to establish a breach of "standard of care," the patient must present the testimony of an expert in the same or similar field of expertise as the defendant.

5. My mother is in the hospital now and I think she is receiving substandard care. Should I consult with a lawyer?

Frequently, we receive calls from people who have a loved one who is in the midst of a life-threatening illness or have sustained a serious injury who feel that the medical treatment that is being provided is not appropriate. There is little, however, that a lawyer can do for you in this situation. What the patient needs is appropriate medical care, and that comes from a doctor, not a lawyer. If you are concerned about ongoing treatment that is required to save the life of the patient, you should talk with the physician involved or seek a second opinion from another physician. However, if you think the treatment is not appropriate, you need to make sure that you bring your concerns, in a constructive and non-accusatory manner, to the appropriate person. There is nothing wrong with doing this. You should also keep notes of conversations with doctors, nurses and others so that you will have some record of what was said (remember, the doctors and nurses are keeping very detailed notes, not all of which are necessarily accurate, and later, when everyone's memory is clouded by the passage of time, contemporaneous notes take on an almost mythical importance). In all cases, the most important thing is the medical outcome, and the patient and the patient's family should do everything in their power to obtain a good medical result. A good medical outcome beats a good medical negligence lawsuit every time.

6. So does that mean that if the outcome is bad that I have a case?

No, it doesn't. A bad outcome does not necessarily imply that anyone did anything wrong. There are no guarantees in medicine and sometimes people die or have an otherwise poor outcome even though doctors and nurses did everything in their power to cure the patient. It is only where the bad outcome is the probable result of negligence that makes it a case.

7. What kinds of mistakes constitute negligence?

Of course, this all depends on the type of medical condition involved, the nature of the medical treatment, and many other factors. It is impossible to document all of the potential medical mistakes that might constitute negligence. However, there are some sort of recurring medical errors that attorneys see rather frequently. Medication errors, for instance, occur with alarming frequency. This might involve use of the wrong drug because the physician's handwriting was unclear, or because the pharmacologist got two drugs with similar sounding names mixed up. It might involve an incorrect dosage, or giving the drug too often or not often enough. Medication errors take a deadly toll on innocent victims. A 2001 study published in the American Journal of Health-System Pharmacy described more than 5,000 medication errors to the FDA during the period 1993-98, 68% of which resulted in "serious patient outcomes," including 469 deaths. The law requires that medication errors be reported to the FDA; however, providers for whatever reason sometimes fail to report.

Another recurring problem is the failure of emergency room physicians to diagnose cardiac arrest. Chest pain is an extremely common complaint among emergency room patients. By far, the most common cause of chest pain is indigestion, an unpleasant, but not dangerous, condition. It is imperative, however, that a cardiac origin for the patient's pain be ruled out before jumping to the conclusion that chest pain is caused by indigestion.

Surgical complications sometimes occur as a result of negligence, as well. Sometimes, physicians will cut into the wrong structure, damaging nerves or blood vessels. For instance, in laparoscopic gallbladder surgery, the surgeon is required to clip and cut through the cystic duct, a small vessel that connects the gallbladder to the common bile duct. It is imperative that the surgeon make absolutely certain that he is clipping and cutting the correct duct. Sometimes, if the surgeon is "almost positive" that he has clipped the right duct, he will go ahead and cut anyway. In such cases, if he has actually clipped and cut the common bile duct instead, he will have committed negligence, because cutting the wrong duct is beneath the standard of care. Cutting the common bile duct can have devastating consequences for the patient. Cutting through an artery or a vein can cause the patient to bleed to death.

Another common problem in surgery is post-surgical infection. Infections can result from negligence, but sometimes they occur even though everyone has done everything possible to prevent the infection. So long as the infection is diagnosed and treated promptly, there is probably no medical negligence case. However, if the surgeon and nurses overlook signs of infection, such as abnormal white blood counts, redness or drainage around the incision or extreme pain, and the delay in diagnosis results in serious injury or death, which happens all too frequently, there may be medical negligence involved. Untreated, infections following surgery can cause serious injury and death.

Sometimes, negligence occurs because of a lack of communication between physicians and others. For instance, abnormal laboratory test results may get filed away in the patient's chart without being reviewed first by the ordering physician. X-rays may be reviewed by a radiologist and found to be abnormal, but the findings may not get reported promptly to the ordering physician.

These are just a few examples of relatively common medical errors that might constitute medical negligence.

8. Well, I had a bad outcome and a lawyer told me that the doctor's negligence was "obvious." He still refused to take my case, though, because he said I'm better now. What's the deal?

In order to prove a medical negligence case, you have to prove three things: that the doctor was negligent, that you were injured, and that your injury was caused by the doctor's negligence. Your case was rejected because of the second factor, your injury. Not all injuries caused by negligence warrant a medical malpractice lawsuit, because even the smallest case involves a lot of time, effort and money. For instance, we once received a phone call from a person who went to the emergency room with all the signs and symptoms of appendicitis but who was sent home with an incorrect diagnosis. The next day, the patient was in severe pain and went back to the emergency room, where he was correctly diagnosed and referred to a surgeon, who performed an appendectomy. Fortunately, the appendix had not burst and the operation went well. The patient suffered no long-term consequences of what was an obvious medical error. The patient did have an injury, but it was a small one in the big scheme of things. It is highly unlikely that any reputable attorney would take such a case, even though negligence may be obvious. You have to have a significant physical injury in order to warrant the time and expense of a medical malpractice lawsuit.

9. So what constitutes a "significant physical injury?"

A significant physical injury is one that results in death or disability. Disability includes an injury that affects a person's ability to carry out the usual activities of work or daily living, such as paralysis, amputation, brain injury, nerve damage, etc. However, what constitutes a significant enough physical injury to warrant a medical negligence lawsuit is a difficult question to answer. Colorado's legislature has made it extremely expensive to litigate medical malpractice cases and has limited the ability of those most seriously injured to obtain an adequate recovery. Because the damages are often limited and the cost of litigation is so high, there are many valid medical negligence cases involving serious injury that are not economically feasible.

For instance, as horrible as this sounds, medical negligence that causes the death of a child is an economically difficult case. If the medical negligence is obvious, attorneys may be willing to take the case, but if the question of negligence is difficult, it is likely that many lawyers will pass on it. This is because the legislature has limited non-economic damages in medical negligence cases to $300,000. Minors - with some exceptions - typically do not provide economic support to their parents, and other economic damages, like medical expenses, may be minimal. As a practical matter, medical malpractice that results in the death of a child are seldom worth much more than the $300,000 non-economic damage cap. And remember, this is the most that can be recovered. If the case went to trial, even in obvious cases of negligence, there is no guarantee that the jury will award even that much. Because the doctor involved and his insurance company know that the maximum they can lose is $300,000, they have no incentive to try to resolve the case out of court except for a token amount of money. They may offer the parents a small amount for the death of the child, and tell them that if they want more they need to go to court to prove their case, safe in the knowledge that no matter what the jury awards, the legislature has limited their liability to $300,000.

This non-economic damage limitation also applies to death cases involving the elderly, who typically have no income other than retirement benefits, and parents who stay at home to care for their children. Non-economic damage caps apply not only to death cases, but also to cases of serious injury. Incredibly, the maximum amount that can be recovered in Colorado for pain, suffering, humiliation and other forms of emotional distress resulting from medical negligence is $300,000. There are no exceptions. This limitation, of course, has the most significant impact on persons who are most seriously injured. This law may seem very unfair if you have lost a loved child, a parent or a spouse, but it is a law that has been upheld by the Colorado Supreme Court.

10. Isn't there some way to get around this law?

The damage cap only applies to non-economic damages. It does not limit the recovery of economic damages such as lost wages, loss of earnings capacity or medical and other out of pocket expenses. Thus, wealthy people with good jobs who are injured by medical negligence can obtain a significantly bigger recovery than children, the elderly, the poor and the jobless.

Keep in mind, too, that the legislature has passed a law that requires the injured patient to reimburse any health insurance company that paid the patient's medical bills, so even if you have a large amount of medical expenses, you are going to have to pay the insurance company, or Medicaid or Medicare, back out of the settlement.

Disfigurement and impairment damages are a different category of damage than non-economic damage in all personal injury actions in Colorado - except medical malpractice cases filed after July 1, 2003. The Colorado Supreme Court had previously held that damages in medical malpractice cases awarded by a jury for disfigurement and impairment are not subject to the $300,000 damage cap for non-economic damages. This is consistent with the longstanding rule in Colorado in all personal injury actions. The medical malpractice insurance companies, however, referred to this as a "loophole" around the $300,000 cap, and the legislature passed a new law in 2003 that subjects all disfigurement and impairment damages to the same $300,000 cap. This does not mean that there is a separate $300,000 cap. All non-economic damages, disfigurement damages and impairment damages, no matter how severely the patient is hurt, are subject to a single $300,000 cap.

11. I think I have a case, but I don't have enough money to pay a lawyer.

Only the most successful business people and wage earners can afford to pay a lawyer's hourly rate for a medical malpractice claim. It is not unusual for our attorneys to put 500 to 1000 hours on a medical malpractice case. If we were to charge our usual hourly rate of $375, the total would be anywhere from $187,500 to $375,000. When lawyers charge by the hour, they expect to get paid regardless of the outcome either monthly or quarterly. This would typically require the client to pay a large retainer, probably no less than $25,000 up front. When the lawyer had worked through that, the client would probably have to pay another $25,000 and so forth until the conclusion of the case.

Since almost nobody could ever afford to bring a medical malpractice suit under those conditions, most lawyers who perform services on behalf of injured patients do so on a contingency fee basis. The attorney does not get paid for any of his time until the case is settled or a judgment is paid. The attorney is paid a percentage of the amount recovered, usually 40% in medical malpractice cases. Although this may seem like a high percentage, it takes into account the fact that sometimes the attorney litigates a case and recovers nothing, and it takes into account the time, expertise and risk involved in these complex and expensive cases. The actual percentage in any give case may be higher or lower than 40%, depending on the nature of the case and other factors, including whether or not the client is able to defray some or all of the litigation expenses as they arise, and the amount of work that the attorneys are required to do to finish the case.

12. What are litigation expenses? Are they different than the attorney's fees?

The attorney's fees are what a lawyer is paid for his time; litigation expenses are those out of pocket expenses that are necessary to bring the case to a successful conclusion. Litigation expenses may include obtaining copies of medical records, expert witness consultations, costs of hiring investigators, deposition costs, copies of photographs and other trial exhibits, etc. Litigation expenses also include such mundane things as long distance phone charges, travel to depositions out of state, copying costs and shipping fees. It is not unusual for litigation expenses in medical negligence cases to exceed $75,000 or $100,000. By far, the most expensive part of the litigation is the cost of expert witnesses, including both the cost of having your own experts review the case and the cost of obtaining the deposition of opposing experts.

1 3. Well, if I have a really obvious case of negligence, and I'm injured severely, can't I just file suit and proceed without expert witnesses?

No. The legislature has passed a law that requires the plaintiff's attorney to file a certification that he has consulted an expert witness, and that the expert has reviewed the case and has concluded that it has merit. The next time someone tells you that there are too many "frivolous" malpractice lawsuits, you should remind them that no medical malpractice case can be filed in Colorado unless a medical expert has reviewed the case and found it to have merit.

In any event, there is such thing as an "obvious" case. Well, that's probably not true. You may recall reading about the teenaged girl in North Carolina who underwent a heart and lung transplant but the donor had the wrong blood type. There, it is obvious that someone was negligent, though exactly who might be unclear. In another recent case, a woman in Minnesota had her healthy breasts removed after the pathology laboratory got her tissue biopsy sample mixed up with that of another patient. Again, those cases are pretty obvious. However, those cases are the exception. Most cases will require significant investigation before it can be determined if the patient has a case. The assistance of a qualified expert, not only to review the case for merit, but also to help the lawyer anticipate possible defenses and areas of weakness, is essential.

14. Where do you find expert witnesses?

Oftentimes, we will obtain the names of experts by reviewing pertinent literature, and calling authors of published material on the subject. Many of our experts come from the academic setting, where teacher/physicians are less motivated by self-interest than by a dedication to maintaining the appropriate standard of care in a field, procedure or treatment. Quite a few of our experts are obtained through our own research and through networking with other lawyers and doctors with whom we've worked on other matters. For instance, when a case comes to us that involves a unique medical procedure that we have not specifically dealt with before, we may contact an expert with whom we worked on another case and ask him to refer us to another physician he knows to have the requisite expertise.

Finding experts can be a time-consuming process. Not all doctors are willing to participate in the legal process, either because of the time involved or because they do not like the adversary process. Sometimes, doctors are unwilling to participate on behalf of patients, but are very willing, even eager, to help one of their colleagues who is involved in a malpractice suit. In Colorado, something like 80% of all physicians are insured for malpractice through an insurance company affiliated with the Colorado Medical Society, creating an almost "family-like" atmosphere and virtually assuring that no experts from within the state of Colorado will be found willing to testify for the patient.

Therefore, we almost always seek help from out of state experts. Usually, our experts will be affiliated with a major university teaching hospital, and we try to retain experts who are both teachers and practitioners.

15. I think I was injured by a doctor in a hospital. Can I sue the hospital?

In most cases, you can not sue the hospital for the negligence of a physician. A hospital can only be held responsible for its own negligence or for the negligence of its employees. While nurses, therapists and other hospital workers are employees of the hospital itself, most physicians are not. They are considered "independent contractors," and the hospital, in general, cannot be held responsible for medical negligence committed by independent physicians.

However, there are important exceptions to this general rule. For instance, if the hospital advertises its services in such a way that it implies that the doctors are its employees or agents, and the patient relies on such representations, the hospital may be held responsible for the negligence of its physicians under an agency theory.

Additionally, hospitals can be held responsible for their own negligence. For instance, if a hospital negligently grants privileges to a physician who is unqualified, it may be held responsible when the physician is guilty of negligence. Or, if a nurse or other hospital employee commits a negligent act in the course of his/her duties, the hospital is responsible.

16. I heard that some hospitals are owned by the government and they can't be sued. Is that correct?

No, just because a hospital is owned by a governmental entity does not mean that it cannot be sued. The Colorado legislature has waived governmental immunity for injuries arising out of the operation of a public hospital.

Although governmentally-owned hospitals can be sued, there are certain barriers to such suits that don't apply to suits against private hospitals. The most significant such barrier is the requirement that the governmental entity that owns the hospital be placed on formal notice of the patient's claim within 180 days. The failure to put the governmental entity on notice can result in the loss of the right to file suit. Therefore, it is important to contact an attorney quickly if you think you've been injured due to negligence in a publicly-owned hospital. Memorial Hospital in Colorado Springs is publicly owned by the city of Colorado Springs, and, therefore, must be given formal notice.

17. What if I am hurt in a military hospital. Can I still file a claim?

Under the Federal Tort Claims Act, persons injured by negligence in military hospitals can file claims, and, if the claim is denied or you are unable to settle your claim, you can file suit. However, the rules are quite a bit different in these claims than they are in the typical state malpractice cases.

First, you must give the United States formal notice of your claim by filing a standard form 95 with the appropriate agency. It is vital that you fill this claim out properly, as mistakes and omissions can result in the loss of your claim or the inability to seek certain damages. The form must be submitted to the United States within two years of when the claim arose, and then you have to wait six months while the United States investigates your claim before you can file suit. Often, the United States will enter into settlement negotiations once their investigation is complete.

Second, keep in mind that the United States is only responsible for the negligence of its own employees and not for the negligence of independent civilian physicians, who still must be sued under state law even though the negligence may occur on a military base. Therefore, you may have both state and federal claims if you are injured on a military base.

Third, in claims brought under the Federal Tort Claims Act, you have to file in federal court and you don't get a jury trial. The federal judge herself will decide your case.

18. I am in the military. If I am injured due to negligence in a military hospital can I file a claim?

No. Active duty military personnel cannot file claims for medical negligence against the United States, even if the negligence is not duty-related. This rule is known as the Feres doctrine from a United States Supreme Court decision many years ago. Sorry.

19. What if my child is injured due to negligence. Can she file suit?

Children cannot file suit directly. In fact, children can't even hire a lawyer to file suit. When a child is injured due to medical negligence, it is up to the parents to hire a lawyer and file suit on his or her behalf. This is called a "next friend" suit. The parents file suit on behalf of the child as the child's "next friend."

Generally, when a child is injured due to negligence, both the child and the parents will have claims, because the parents are responsible for the child's medical expenses.

20. Are cases involving children treated differently in court than cases involving adults?

Yes, they are treated a little differently. First, the statute of limitations is different for children than it is for adults. Adults must bring their medical malpractice claims within two years, but, for children, the statute of limitations is tolled until they are 18 unless they have a legal guardian appointed. Second, because children can't legally settle a personal injury claim, all settlements involving children must be approved by the probate court.