The Colorado medical malpractice statute of limitations determines the deadline by which you must file a medical malpractice lawsuit. Miss the deadline and the court will dismiss your lawsuit unless an exception applies.
Think of a statute of limitations as a clock that begins running on the date you’re injured and gradually counts down to zero. Once the clock hits zero, your injury claim is forever barred, and you can no longer seek compensation.
The Statute of Limitations and Settlement Negotiations
Claimants resolve the vast majority of medical malpractice claims through negotiated settlements rather than going to trial. No one wants to go through a lengthy, expensive, and stressful trial if they can settle matters out of court. But each party typically agrees to a settlement when it appears to be the best possible option, and it may take a while to get there. You typically have to go through the discovery process and a period of analysis and building your case before you can go to the negotiating table with some leverage. And you have to do all of this and negotiate a settlement before the statute of limitations deadline expires.
Why? Because once the deadline passes, the opposing party has run out the clock and knows that you can no longer take your case to trial. In other words, the opposing party has no motivation to negotiate with you anymore or pay you one red cent.
The General Statute of Limitations for Medical Malpractice
The general statute of limitations for medical negligence states that you have two years after the incident that triggered the claim to pursue your lawsuit. Two years is the applicable deadline unless one of the exceptions discussed below applies.
The Wrongful Death Statute of Limitations
If a healthcare provider’s error actually kills a patient, the appropriate claim to file is a wrongful death lawsuit. A close relative typically files such a claim. In this case, the statute of limitations clock also runs for two years. The difference is that the two-year period begins on the date that the patient dies, not the date that the healthcare provider actually commits the malpractice.
Exceptions to the General Statute of Limitations
Colorado recognizes several exceptions to the general statute of limitations. Don’t count on an exception to apply, however, without consulting with a Colorado medical negligence lawyer.
The Discovery Rule
The discovery rule applies when you could not have discovered the existence of a medical malpractice claim despite the exercise of reasonable diligence. Let’s look at some examples:
- A doctor prescribed the wrong medication, and you did not realize that medical malpractice caused the negative impact you experienced.
- A doctor fails to diagnose a serious illness that has yet to produce symptoms.
- A surgeon commits a surgical error that does not cause immediate symptoms.
If the discovery rule applies, the statute of limitations clock does not begin to run until the earlier of the following: (i) the date that you actually discovered the malpractice; or (ii) the date that you would have discovered the malpractice if you had exercised reasonable diligence.
The Statute of Repose
The Colorado statute of repose is three years after the healthcare provider commits the malpractice. It is designed to operate as a second deadline.
Suppose, for example, that a medical malpractice claim arises on June 15, 2022, but you do not discover the claim until June 15, 2024. In this case, you don’t get to wind up the statute of limitations clock and let it run all the way until June 14, 2026, which is two years after the date of your discovery. Instead, you have until three years after the claim arose or until June 14, 2025.
Exceptions to the Statute of Repose
Colorado has a general statute of limitations on medical malpractice. Then it has the exception of the discovery rule. Then it has the exception to the exception, which is the statute of repose. It also has exceptions to the exception to the exception to the general rule. These “super exceptions” include cases where:
- The healthcare provider intentionally concealed evidence of the malpractice;
- The patient was a child at the time of the malpractice; or
- The malpractice consisted of leaving a surgical instrument or other foreign object inside the patient’s body.
Any of these super exceptions allow you to evade even the statute of repose deadline.
Other Important Deadlines
The Colorado medical malpractice statute of limitations deadlines are not the only deadlines you must face when you pursue a medical malpractice claim. Consider the following deadlines as well.
The Certificate of Review
Within 60 days after you file a medical malpractice lawsuit, either you or your lawyer must file a certificate of review with the court. The certificate of review must include a statement from a qualified medical expert who has reviewed your case, assuring the court that your medical malpractice claim is at least plausible.
If You File a Claim Against the Government
Sometimes a medical malpractice claim arises from a cause that you can attribute to the state or federal government. One example of this would be if you were the victim of medical malpractice while a patient in a Colorado state hospital or a federal Veterans Administration hospital.
Special rules apply when you sue a government. Some types of medical malpractice claims are impossible to file at all due to the “sovereign immunity” that governments enjoy. The rationale behind these special rules is that the taxpayers will ultimately pay any lawsuit compensation. So, in effect, the wronged party doesn’t pay the price—the taxpayers do. Giving sovereign immunity to the government avoids this unfair result.
Filing a claim against the Colorado state government
If you sue the Colorado state government or any subdivision thereof, you must first file a special notice. You must file this notice with the government agency within 182 days of the date your claim arose. The purpose of this deadline is to allow the defendant to investigate the claim and to fix any dangerous condition.
Once you file the notice, you must wait an additional 90 days before you can file a lawsuit, unless the defendant denies the claim before the 90-day deadline expires.
Filing a claim against the federal government
If you sue the federal government, you must file an administrative claim with the defendant government agency within two years of the malpractice, and the agency must respond within six months after that. Once it responds, or the six months expires, you can file a lawsuit.
The Colorado medical malpractice statute of limitations and the other deadlines listed above are the legal deadlines you must observe. Practical limitations apply as well, however. Evidence deteriorates over time, for example, and your legal practitioner will need time to prepare your claim.