Ballot Initiatives Call on Colorado Voters to Determine Medical Malpractice Regulations and Damage Caps

Attorneys for plaintiffs and healthcare/business leaders in Colorado have recently submitted competing ballot initiatives, set to go before the state's voters in November to decide malpractice regulations and damage caps. These initiatives will address issues such as the amount of recoverable damages in catastrophic injury and wrongful death lawsuits, access to certain records in medical malpractice cases, a cap on attorney fees at 25% of recovered damages, and whether plaintiff attorneys must disclose anticipated litigation costs upfront, with a cap of no more than 10% above the estimate.

The Colorado Trial Lawyers Association (CTLA) submitted the first set of initiatives. One proposal seeks to remove caps on noneconomic damages in catastrophic injury and wrongful death lawsuits. Colorado currently limits recoverable noneconomic damages for medical malpractice claims to $300,000, with a total cap of $1 million for both economic and non-economic damages, a law enacted in 2003. Only four states have a lower cap on noneconomic damages for medical malpractice claims.

The second initiative from the CTLA would grant patients access to all medical records, information, or communications related to any adverse medical incident that caused — or could have caused — injury or death. At present, peer-review records of healthcare professionals are not accessible to plaintiffs in medical liability cases.

Colorado’s healthcare and business sectors, united under the group Coloradans Protecting Patient Access, filed counter-initiatives in response. These counter-proposals advocate for lower limits on the fees plaintiff attorneys can charge their clients and require disclosing estimated litigation costs before filing a case. Additionally, the group expressed openness to a reasonable legislative damage cap increase.

“We understand that Colorado’s noneconomic damages cap for pain, suffering, and impairment of life quality is one of the lowest in the nation. Many states have raised their caps recently due to inflation or negotiated increases, which has contributed to growing pressure to raise or eliminate these caps in Colorado,” reads a letter posted on the Colorado Medical Society's website. “While we support finding ways to address this issue, we believe any increase must be reasonable and protect both patients and providers. Recent increases in noneconomic damage caps have been negotiated in California and Nevada to prevent ballot initiatives that would remove caps entirely.

“Maintaining a stable healthcare environment requires that caps be increased to a reasonable level, without eliminating them. If caps are set too high or removed, liability insurance may become unaffordable for providers and healthcare organizations, potentially driving them out of the state.”

The letter also highlighted the support of the Colorado Medical Society and COPIC Insurance Co., the state’s largest medical liability insurer, for Senate Bill 24-130. This bill proposes a gradual increase of the state’s noneconomic damage cap from $300,000 to $500,000 over five years.

The Colorado Medical Society plans to invest in a significant ballot campaign to defeat the CTLA's proposals and advocate for its initiatives.