Posted in , on April 9, 2009

Are You Stuck in 1988? Compensation for Victims of Medical Malpractice Is.

Do you still wear that awesome pair of MC Hammer pants you bought at the Chess King? Or, maybe you are still sporting a mullet, mall bangs, or have a line shaved into the sides of your head… Do you still watch Thirtysomething, religiously? You can’t get enough of the Golden Girls? Do you find yourself humming, “Get Outta My Dreams, Get Into my Car,” or perhaps you have gotten in to an argument defending “Parents Just Don’t Understand,” as the definitive rap against which all others are to be judged. If so, you may be stuck in 1988. Do you know what else is? The non-economic damage caps for medical negligence cases in the State of Colorado.

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

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!”

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