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Anatomy of a Medical Malpractice Case

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If you or a loved one has been injured as a result of medical malpractice, you may be entitled to compensation for the harm you have suffered. As Denver personal injury lawyers, we are experienced in helping our clients to maximize their recovery for medical malpractice.  Medical malpractice can take many forms, including: misdiagnosis or delayed diagnosis; misread lab results; botched surgeries; performing unnecessary procedures; failure to order appropriate testing; failure to obtain informed consent; leaving surgical instruments inside patients; operating on the wrong body part; causing infection through unsanitary practices; anesthesia errors; birth injuries; and emergency room negligence.

Not surprisingly, medical malpractice cases can be extremely complex.  Moreover, time is of the essence, as claims must typically be filed within two years of the alleged malpractice.  Early evaluation by the appropriate medical experts in consultation with experienced attorneys is critical to your success.

The first step in the process is to collect your medical records.  This includes any and all records that may be relevant to the case.  Your attorney can assist you in obtaining records necessary to support your claim.  In many malpractice cases, it is not always apparent what went wrong. The doctor or medical facility may not be completely forthright with you and the truth may come out only after an in-depth investigation.  Importantly, there may be many parties at fault for the malpractice.  All of these issues will be fleshed out during your initial consultation with an attorney.

Statute of Limitations Considerations

Generally, actions for medical malpractice in Colorado must be brought within two years of the alleged malpractice.  Importantly, Colorado applies a “discovery rule,” which provides that the two year clock does not start until the harm is discovered (or should reasonably have been discovered). Examples of this include discovery of a foreign object, such as gauze, sponge, or needle left in your body after a procedure.  In this scenario, if you do not discovery the foreign object for a year after having surgery, the statute of limitations does not start to run until the discovery, rather than from the date of the surgery. 

The statutory deadline may also be extended if the defendant left the state after committing the malpractice at issue or if the plaintiff was legally incapacitated at the time. There is also a special provision regarding young patients. Any claim brought on behalf of a minor who was under the age of six when the alleged malpractice occurred must be filed before the child’s eighth birthday.

Colorado also has a “statute of repose,” which provides that a medical malpractice claim must be filed no later than three years from the date of alleged negligence.  However, the three year limitation does not apply in certain situations, including where the alleged malpractice was knowingly concealed by the defendant or involved a foreign object, or if plaintiff could not have discovered the actual malpractice or resulting injury even through the exercise of “reasonable diligence.”

Recoverable Damages for Medical Malpractice

Colorado places a hard cap of $1 million on recoverable damages.  No more than $300,000 may be recovered for non-economic damages, such as pain and suffering.  Importantly, the $300,000 cap does not apply to economic damages like lost wages and medical expenses and the court may make an award in excess of $1 million if it finds that the present value of past and future lost earnings and medical costs would exceed the limitation. 

Procedural Requirement:  Certificate of Review

In every malpractice action, a “certificate of review” must be provided to the other side early in the case.  The certificate is signed by plaintiff’s attorney and must declare that the appropriate medical expert has been consulted and that concluded that the claim “does not lack substantial justification,” meaning that the case has merit.  As Denver personal injury lawyers, we work with qualified medical experts in numerous specialties to prepare the certificate of review for your case.   

Let Denver Personal Injury Lawyers Assist You With Your Claim

If you or a loved one has been injured as a result of medical malpractice, we welcome you to contact Levine Law at (303) 333-8000 or by email for a free consultation.

May 17th, 2019 | Posted by paperstreet, on Personal Injury

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