Filed Ballot Initiatives Ask Colorado Voters to Decide Medical Malpractice Rules, Damage Cap
Plaintiff attorneys and healthcare/business leaders in Colorado recently filed competing ballot initiatives that will ask the state’s voters to decide in November the amount of recoverable damages in catastrophic injury and wrongful death lawsuits, whether certain records are accessible in medical malpractice litigation, whether to cap attorney fees at 25% of recovered damages, and whether to mandate that plaintiff attorneys disclose up front the expected litigation expenses their clients are responsible for paying and cap those costs at no more than 10% above the estimate.
The Colorado Trial Lawyers Association (CTLA) filed the first ballot initiatives. The first proposal would remove noneconomic damage caps on catastrophic injury and wrongful death lawsuits. Colorado capped the amount of recoverable noneconomic damages for medical malpractice claims at $300,000 — with a $1 million cap on total economic and noneconomic damages — in 2003. Only four states currently have a lower noneconomic damage cap for medical liability lawsuits.
The second initiative filed by the plaintiff attorney group would give patients the right to access any medical record, information or communication relating to any adverse medical incident that caused — or could have caused — injury or death to the patient. Currently, the peer review records of healthcare professionals are inaccessible to plaintiffs in medical liability litigation.
Colorado’s healthcare/business interests — under the collective banner Coloradans Protecting Patient Access — filed their counter-initiatives in response to the CTLA’s. In addition to asking voters to install lower limits on how much plaintiff attorneys can charge their clients and to mandate the disclosure of expected litigation expenses prior to filing, the group expressed openness to a reasonable legislative increase of the damage cap.
“We know that Colorado’s noneconomic damages cap (e.g., for pain and suffering, and impairment of the quality of life) is now one of the lowest in the country, as many states have seen increases in recent years due to inflationary changes or negotiated increases. This is one reason why Colorado has become the focus of an increasing trend across the country to raise or eliminate state caps on non-economic damages,” reads a letter to members posted on the Colorado Medical Society’s website. “We support looking at ways to address this vulnerability in our tort environment, but we also recognize that it needs to be accomplished in a reasonable manner that considers how best to protect both patients and providers. In the past two years, we have seen non-economic damage caps raised in both California and Nevada through a negotiated legislative process to prevent a ballot initiative eliminating all noneconomic damage caps …
“Keeping our healthcare environment healthy means increasing caps to a reasonable level, while ensuring caps are not eliminated altogether. We know that if the noneconomic damage cap is set too high or eliminated, liability insurance becomes unaffordable for providers and healthcare organizations, driving them out of the state.”
The letter further noted that the Colorado Medical Society and the state’s largest insurer of medical liability, COPIC Insurance Co., support the recently introduced Senate Bill 24-130, which would incrementally increase the state’s noneconomic damage cap from $300,000 to $500,000 over a five-year period.
The Colorado Medical Society intends to fund a robust ballot campaign to defeat the CTLA’s initiatives and prevail with its own.
