Sweeping tort reform occurred in Colorado in the late 1980s. The victims of medical negligence (medical malpractice) were some of the people hardest hit. Among the legislation passed was a statute that limited recovery for non-economic damages (pain, suffering, disability, disfigurement, loss of enjoyment of life, and essentially all of the other non-medical bills, non-loss of a paycheck damages). In 1988, that cap was set at $250,000. That meant that, even if a doctor’s or a hospital’s mistake resulted in permanent quadriplegia for the patient, the most he could recover for his inability to even walk again, to pick up his children, to hug his dying mother, to brush his hair out of his face, or to even breath without the assistance of a ventilator, was limited to $250,000.

In 2003, that cap was raised to $300,000, and has not been raised since. While, at first blush, an increase may sound like progress, in truth, it was a step backwards. In the 15 years that had elapsed since the 1988 cap was put into place, inflation had reduced the purchasing power of a dollar significantly. A cap of $300,000 could be equated to a 1988 cap of $193,021. Did the intrinsic value of being able to move across a room on your own legs really diminished by over $50,000 between 1988 and 2003? Of course not. Has it diminished between 1988 and today? Of course not. Why, then, is the cap for non-economic losses in a medical malpractice case still capped at $300,000? Why are the victims of hospital negligence limited to recover what equates to about $160,000 in 1988 dollars for their non-economic losses?

Representative Christine Scanlan must be asking the same questions, as she recently announced that she will be sponsoring a bill this session aimed at restoring the original purchasing power of the cap on non-economic loss in medical negligence cases by allowing it to adjust for inflation. The net result, if passed, is that the bill will adjust the cap from $300,000 to approximately $460,000, and will then allow the cap to be adjusted annually, thereafter, as do the caps on many other damages (like those for people injured in a car accident). The bill also includes a mechanism for oversight of medical malpractice insurers by the Division of Insurance, to make sure rate increases, if any, are proper.

Copic Insurance, (the medical malpractice insurance carrier that provides insurance to about 80% of all Colorado physicians) not surprisingly opposes this bill. They claim, as support, that the country is in a recession and this isn’t the time for a change in the medical malpractice caps. Copic is correct. Our country is in a recession. However, that hasn’t changed the fact that things cost a lot more than they did in 1988. Bread and milk cost more. Gas costs more. And, all of this means that a dollar buys less (about 15 cents less) than it did in 2003. So, why does a recession mean we should try to make people who have been injured, whole with yesterday’s dollars? Are the hospitals charging less for than services than they did back in 1988, because of the economy? I seriously doubt it.

Objective, independent data make it clear that malpractice insurance rates have almost no impact on the overall cost of health care, that caps do not affect malpractice insurance rates and that malpractice insurance rates do not impact physician availability. Competition is one important mechanism for keeping insurance rates as low as possible. In Colorado, competition in the medical malpractice arena is almost non-existent. The lack of competition is a key reason why increased oversight is needed. Under current law there is no effective oversight of medical malpractice insurance rates by regulators and the Commissioner of Insurance has no authority to find medical malpractice rates excessive. Yet, every suggested policy change to the Health Care Availability Act (where the non-economic damage cap is found) is objected to by Copic on the grounds that malpractice insurance rates will increase. Increased regulatory oversight will protect physicians and other health care providers while providing crucial information to the legislature and the public.

When this battle kicks into high gear, Copic will undoubtbly blame the bill on “greedy trial attorneys” who are “trying to line their own pockets.” Copic Insurance (vis-a-vis the Colorado Medical Society, which formed Copic) has lobbyists that work all day at the Capital trying to implement laws that are favorable to Copic Insurance. Nonetheless, you will not hear them characterizing themselves as a “greedy insurance representatives trying to line their own pockets.” The average victim of medical malpractice doesn’t have the luxury of a team of lobbyists available to interact with the lawmakers at the Capital, and consequently has no real voice in the legislative process. (In fact, if that victim suffered a brain injury as the result of malpractice, he may have no voice at all). The victims aren’t organized, and likely are so busy dealing with the long-term consequences of their injuries that they don’t even have the time to put together any real grass-root effort to make changes to help others that will sadly someday follow in their paths. The attorneys who represent these men, women and children, however, are more organized, and have an obligation to be the voice of those they represent. That is why trial attorneys support legislation like the bill being sponsored by Representative Scanlan.

Do you know who else should and can support this legislation? YOU! You can become the voice to your Representative and to your Senator. You can tell them that you support the bill to index medical negligence caps and that you want them to do so, too. If you don’t know the names and numbers for your representatives, go to the following website: Colorado All Colorado Districts – Which Districts Are You In?On this site, on the right hand side of the map you will find a Find/Change Location option. This option lets you locate street addresses, city, and county data. Due to the dated nature of the street used in the map, the street information may not contain your street address. You may try the street address with the city included. If your street address can not be found, you may begin by locating the county or city in which you reside. Then use the Zoom In feature on the left hand side of the map until you can see where you reside on the map. At that point you can click on the District Info button on the left hand side and then click on the map at the location where you reside. In a few seconds a box will appear at the bottom of the map with a list of the district numbers and names for that areas State Senator, US Congressional Representative, and the State House of Representatives member. For more information, contact Bachus & Schanker at 303-893-9800 or email at swillis@coloradolaw.net.

And, if you have any doubt that the present law is out-of-date, just remember that 1988 was also the year Weird Al Yankovic won a “Best Concept Music Video” Grammy for “Fat,” the spoof of Michael Jackson’s “Bad.” “Nuff said!”

Advocates in favor of the nationwide program say it could save approximately $150 billion on paperwork alone. Because of the administrative complexities in our current system, over 25% of every health care dollar goes to marketing, billing, utilization review, and other forms of waste. A single-payer system could reduce administrative costs greatly.

These advocates address the ‘myth’ behind the idea that implementing such a program will bring our country closer to socialism, stating that with a Single-Payer system the health care delivery system remains private. As opposed to a national health service, where the government employs doctors, in a national health insurance system, the government is billed, but doctors remain in private practice.

Do most of us believe that a national health insurance program will lead to better medical care, and a better America? So far, politicians pushing the idea are disappointed after legislatures strike down the plan everywhere from Wisconsin and Pennsylvania to Illinois, and California. Spectators report that the fool-hardy plan is actually more expensive to implement than anticipated.

It’s starting to sound like the only thing that is “universal” and “national” is the idea that health care needs to be improved.

On the other side of the tracks, advocates in favor of the privatization of the health care system argue that universal health care is false advertising for politically controlled medicine, with government as the “single payer” insurer. Having coverage does not guarantee getting medical care.

These advocates also address the idea that universal health care will save our money. Brian Schwartz comments,

“Since patients prepay through taxes, medical care under such systems appears to be free. This gives patients strong incentives to over-consume, while providers need not compete on price. To contain costs, governments restrict access to life-saving treatments. In countries with such universal coverage, patients die waiting for treatment.”

Nontheless, the Colorado legislature is dipping their feet in the pool of health care reform. Reports state that the 208 Commission for Health Care Reform has selected four comprehensive health reform proposals. The 208 Commission is required by statute to hold public hearings in each Colorado congressional district this fall. Perhaps representatives from both sides of the tracks can gather and decide on something we can all agree upon.

Nikki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Due to medical advances, many of the children who would not have survived a generation ago are facing a future that is ill-equipped to care for them. While there are facilities that care for and provide services for severely disabled or ill children such as St. Mary’s Healthcare System for Children in New York, St. Jude Children’s Hospital in Memphis, Tennessee and Shriner’s Hospitals for Children. Most young people are expelled from these programs when they turn 18, in order to accommodate the influx of younger patients.

“This is a problem that has gone largely unrecognized and is only going to grow,” said Dr. Edwin F. Simpser, the chief medical officer at St. Mary’s Healthcare System for Children, the largest provider of intensive rehabilitation and specialized care for severely ill and disabled children in New York.

At St. Mary’s alone there are some 200 children aging out of its program in the next few years. “We could be talking about 70 percent of those kids ending up in a nursing home if we don’t find an alternative,” he said.

As these children mature, and their parents age, home care becomes more difficult or impossible for the severely disabled or ill. But, with nowhere else to go, an estimated 8,000 people under the age of 30 are among the approximately 1.4 million residents of nursing homes, according to the Centers for Medicare and Medicaid Services. Additionally, aging parents are concerned about the quality of their child’s care when they are no longer around to visit and monitor their child’s care facility.

While programs are being developed to accommodate these young people with special needs, there’s no existing model. This dilemma also stresses the importance of a strong settlement if the child is disabled due to an injury.

“It’s something totally new, so part of it is just educating people about the situation,” Dr. Simpser said. “We may also need to push for specific legislation.”
He said that St. Mary’s officials were exploring the idea of establishing small institutions in homelike settings – with perhaps as few as six young adults – where there would be one or two health professionals on duty at all times.

A place of their own, some place to call home…something that we take for granted, but doesn’t exist for the nearly half a million severely disabled or ill young people in our country.

“The Fair Share Health Care Initiative” would make an amendment in the Colorado Constitution requiring companies that employ 20 or more to offer health insurance coverage to employees and their dependents.

A Colorado Springs postal worker, Chuck Bader, initially wrote the initiative as a result of working numerous jobs that didn’t provide benefits. If the initiative is approved, Bader must collect 76,000 valid signatures by April 10th to get the proposal on the November ballot. Bader states that since there are a reported 800,000 uninsured Coloradans, he doesn’t believe receiving support will be a problem.

Even if the ballot does win approval, Ralph Pollock who is chair of the Colorado Association of Commerce and Industry’s HealthCare Council, exclaims that it will still undergo a big obstacle in the courts.

The attorneys at Bachus & Schanker, LLC, advocate consumer rights and understand both the importance of proper insurance coverage and that insurance law and coverage disputes are complicated. Our team of experienced insurance bad faith attorneys is committed to understanding insurance law and the legal remedies available to our clients. For more information on how we can help, please click here.

Insurance companies are legally allowed to cancel your policy, but only under strict terms. Some of the reasons for cancelled policies include not paying premiums, growing out of your policy by reaching an ineligible age, and failure to properly answer questions at the outset of the insurance policy. As of August 29 2007, updated rules against health plan cancellations have been delayed.

Along with Health Net Inc., other insurance companies who have gained public notice for canceling policies include Kaiser, Blue Cross, Blue Shield and PacifiCare.

The attorneys at Bachus & Schanker have considerable experience in insurance bad faith claims against large insurance companies. We believe in helping consumers to the best of our abilities and fighting for what they are entitled to.

For more information about Insurance Bad Faith Claims and how we can help, please click here.