Filing a lawsuit for a birth injury that caused a child to sustain lasting conditions or disabilities involves paying close attention to the letter of the law. Accusing a healthcare professional or facility of malpractice can be a lengthy process. Victims of birth injury, or the parents of a child who suffered a birth injury, often choose to file a lawsuit because the injury they suffered resulted in a lifetime of expensive medical care.
Damages Awarded
In Colorado, birth injury lawsuits are capped at a total of one million dollars that can be awarded for all damages. This includes a 300,000-dollar cap on non-economic damages, which includes damages for “pain and suffering”, “loss of enjoyment of life”, and disfigurement or other conditions which do not have a direct effect on the child’s medical health. Economic damages make up the other 700,000 dollars that can be awarded, and include anything that can be itemized, such as medical bills, attorney fees, and estimations of future medical care expenses.
Colorado also follows a rule that modifies the damages that can be awarded in relation to the fault on the part of the plaintiff. This means that if the party that is claiming there was malpractice is found guilty of sharing in the negligence that caused the injury (such as willfully not following a doctor’s instructions or medical advice), the amount that can be awarded will be diminished.
Before You File
There are several things to keep in mind before a birth injury lawsuit can be filed in Colorado. The statute of limitations in Colorado is a multi-part law that covers most of the special exceptions and situations regarding when a lawsuit is still viable to be heard.
For most malpractice suits, the lawsuit must be filed within two years of the incident. The most common exception that applies to birth injury lawsuits is the discovery rule, which states that a family can file a birth injury lawsuit in a Colorado court for up to two years after the discovery of the injury. This is important, because many birth injuries that lead to disorders like cerebral palsy or seizure disorders, cannot be detected until the child reaches the toddler stage.
However, the statute of repose, or absolute deadline allowed by the Colorado courts, regardless of when the discovery was made, is three years from the date of incident. The only exceptions to this clause are in the cases where the injury was willfully concealed by a medical professional; if the timely discovery of the injury was impossible through reasonable diligence; or if the injury resulted from an unauthorized foreign body being left or placed in the child’s body during surgery that occurred at the time of birth.
Minor children are given until the age of eight to file a malpractice suit on their own behalf. Additionally, if a child is appointed a legal representative by a Colorado court at any time before the age of 18, that legal representative has two years from the date of appointment to file a birth injury lawsuit.
Catastrophic Birth Injury
A “catastrophic birth injury” occurs when the injury results in a permanent disability that could have been avoided by a healthy birth. This includes conditions and disorders like cerebral palsy, brain damage, deafness or blindness, seizure disorders, amputation, paralysis, neurocognitive disorders, delayed mental development, learning disorders, or wrongful death.
In the event of a wrongful death of an infant, families have two years from the time of death to file a birth injury lawsuit. An attorney that specializes in malpractice suits can help arrange the necessary certificate of review required to open a lawsuit.
Sources:
http://www.alllaw.com/articles/nolo/medical-malpractice/laws-colorado.html
http://www.coloradolaw.net/consumer-information/birth-injury-catastrophic-colorado.html