How Colorado’s Medical Malpractice Victims Can Maximize Their Compensation with the Candor Act

Medical malpractice lawsuits are an effective way to hold reckless health care professionals accountable — if you have substantial damages, a rock-solid case, and the patience to wait a few years. You don’t have all that? Fine, join the club. However, you still deserve relief when a doctor, dentist, or hospital botches your treatment. Here is how Colorado’s medical malpractice victims can maximize their compensation with the Candor Act.

Post-Surgery Scenario 

You’re back home from surgery, but within a week you feel worse than before. The sealed incision is red, swollen, and painful, and it’s hot to the touch. A visit to the ER shows that a surgical sponge was left inside you. Now you need more treatment. Why should you have to cover the costs?

If this happened before July 1, 2019, you’d have two choices:

1. Bill your insurance, or yourself, for all treatments and move on, or
2. Sue the surgeon and hospital for malpractice.

Neither option is ideal. The surgeon won’t take responsibility and has plenty of resources to stall or defeat your malpractice claim. Still, it can’t be your fault. All you did was follow the doctor’s orders. You couldn’t have infected the cut yourself; you were unconscious.

A Problem In Need of a Solution 

Previously, medical providers had to report all negligence-related settlements and verdicts to their licensing boards. This gave them no incentive to admit their mistakes, as doing so could damage their professional standing. As a result, the victims of adverse events and misdiagnosis found it harder to get the relief they deserved.

Enter the Candor Act.

What is the Colorado Candor Act?

The Colorado Candor Act, codified in Colorado Revised Statutes 25-51-101 through 25-51-106, went into effect on July 1, 2019.

The Act facilitates open communication between medical professionals and patients after treatment mishaps. It creates a “time out” where the doctor and patient can step aside and talk about the issue confidentially. The aim is to promote confidential, out-of-court settlements in place of adversarial medical malpractice lawsuits.

Doctors and other medical professionals can reach out to patients and discuss mistakes that led to bad treatment.

The law allows doctors to offer compensation and relief without reporting the incident to their licensing board.

As a result, medical professionals can now amend their mistakes without risking damage to their careers. Patients can get compensated for adverse incidents without burning time and risking losing their case in litigation.

Adverse Events Covered by the Candor Act 

The Act can address any medical treatment resulting in an unfavorable outcome. Types of incidents include:

• Misdiagnosis
• Medication errors
• Infections
• Treatment errors
• Infections
• Surgical errors
• Dental/oral surgery errors
• Acting without patient’s consent
• Communication mistakes
• … and more

Malpractice claims can arise from actions before, during, and after treatment. Pre-treatment errors could include:

• Misdiagnosis
• Ordering the wrong tests
• Inadequate/incorrect symptom evaluation

Treatment errors can involve:

• Using the wrong equipment
• Using unsterilized surgical tools
• Leaving surgical tools inside the patient
• Removing the wrong organ or tooth

Medication errors may include:

• Prescribing the wrong medicine
• Ordering the wrong dosage

Communication errors occur when a medical professional leaves out important information. For example:

• Insufficiently explaining medical procedures
• Not going over all of a patient’s treatment options

How the Candor Act Works

Only the medical professional or health care provider can initiate the Candor process. They must do so, in writing, within 180 days of learning about the adverse incident.

This written notice should explain the patient’s rights, and how Candor Act communications are handled. Information for the patient includes:

• Their right to access their own medical records related to the adverse health care incident;
• The right to seek and benefit from legal counsel during the process;
• Notice that time spent in the Candor process does not extend the deadline to pursue a medical malpractice lawsuit;
• Advise that no communications, documents, or other materials related to the Candor process can be used as discovery in a subsequent lawsuit;
• And more, all of which can be found in Revised Stats. 25-51-103 (2) (a) to (f)

Medical Professionals Make the First Move 

As the patient, you cannot compel your doctor into a Candor Act discussion. Trying to do so will only void the process.

However, you are not required to participate in the process. You retain all legal rights and options unless or until a Candor Act settlement is reached.

What’s in it for the Doctors? 

Medical professionals have a strong incentive to settle with patients through the Candor Act.

First, it allows them to discuss and correct mistakes made when treating or diagnosing patients.

Second — and more crucially — malpractice settlements reached through this process stay confidential. The error does not get reported to their professional licensing board or entity.

Third, once a settlement is reached, the patient waives their right to further legal action. They are also bound to the terms of privilege and confidentiality in the process.

In other words, the patient cannot leave a bad online review about the incident or go on social media to tell everyone what a bad doctor they had. Patients must take their settlements and stay quiet.

What if the Process Yields No Settlement? 

If the Candor process fails, you still can file a malpractice claim against your doctor. However, none of the documents, discussions, or materials generated solely for or discussion had within the Candor process can be used in the lawsuit.

What the Doctor/Provider Might Offer? 

As all Candor Act negotiations are privileged and confidential, it’s hard to say. However, it’s possible that relief could include:

• Reimbursing the cost of the botched procedure, and
• The cost of any corrective surgery or procedure, plus
• Some compensation for inconvenience, pain, and suffering

Amends for an incorrect or late diagnosis could amount to a lump sum, and/or reimbursing some of the costs of necessary treatment or surgery.

Unfortunately, this is mostly speculation, since Candor Act agreements are kept confidential.

Do’s and Don’ts of the Candor Process 

While using Candor can lead to faster relief, it is by no means a simple process. There are narrow rules about what a patient can and cannot do. Stepping out of line from any of these requirements could immediately forfeit your opportunity.

Some of the rules are:

• The patient cannot make a specific demand for money;
• The patient cannot claim that the doctor/provider has done anything wrong;
• Most discussions — except the initial written notice from the doctor/provider and any compensation offer — are handled orally, not in writing. — R.S 25-51-103(7)

Again, it’s important to keep in mind that this is not a tort claim or lawsuit. It is exactly what the law intended: an honest, confidential discussion about adverse events and possible compensation.

Advantages and Disadvantages of the Candor Process 

Is the Candor process for you? Maybe. It’s the best tool we have for trying to settle potential malpractice cases out of court. However, it’s not fool-proof.

There are two obvious advantages to the process, including:

• That open discussions out of court can lead to faster relief, and
• The patient has more leverage to induce compensation from the health care professional.

However, there are disadvantages, such as:

• There’s no guarantee of a satisfying resolution;
• Even if you’re happy with the resolution, you might get less compensation than you deserve, and
• It can feel unfair that your doctor’s mistake won’t go on their public record.

Before engaging in an “open discussion” with your healthcare provider, be honest with yourself. What do you really want?

Get the Right Attorney for Your Malpractice Claim 

Has your health been complicated by a medical professional’s negligence or incompetence? You have legal options. Whether you choose the Candor Act process or decide to go bigger, we are here for you. An experienced medical malpractice attorney can help get the compensation you deserve. Call (303) 688-0944 for your case assessment.