Ultimate Guide to Catastrophic Injury Claims in Colorado: Seeking Justice and Compensation
A catastrophic injury will change the trajectory of someone’s life forever. It has the ability to affect a family for generations. What makes a life-altering injury tougher to accept is when someone else’s negligence caused it. That is tough to reconcile.
My team wants to make sure that you have everything you need in the short- and long-term as you move forward. Our Ultimate Guide to Catastrophic Injury Claims in Colorado explains everything you need to know about getting the justice and compensation to which you are entitled.
Bottom Line:
The road to recovery after a devastating injury is long and difficult. Sometimes it’s a permanent detour. However, there are powerful legal remedies and protections to reduce the effect of this unfortunate event. A catastrophic injury attorney will maximize the chances of receiving full compensation.
In this Guide
What is a Catastrophic Injury?
Available Legal Claims for Catastrophic Injury Survivors
Common Types of Catastrophic Injuries
Legal Issues in Catastrophic Injury Cases
Determining Liability in Catastrophic Injury Cases
Investigating and Building a Catastrophic Injury Case
Building a Strong Catastrophic Injury Case
Calculating Damages in a Catastrophic Injury Case
Economic Compensation
Non-Economic Compensation
Punitive Damages
Settlement and Trial Considerations in Catastrophic Injury Cases
How to Prepare for a Catastrophic Injury Trial
Working with Experts in Catastrophic Injury Cases
Selecting and Working with Expert Witnesses
Issues Unique to Catastrophic Injury Matters
What is a Catastrophic Injury?
A catastrophic injury is any impairment, condition, or disfigurement that causes a long-term disability. In other words, it’s life-altering. It can be one serious impairment — such as blindness, or partial paralysis — or a collection of severe injuries.
Catastrophic injuries can include:
traumatic brain injuries
spinal cord damage
amputations
multiple crushed or broken bones
neurological damage
organ damage
severe burns
Catastrophic injuries are usually caused by someone’s negligent, reckless or intentional conduct, medical malpractice, or dangerous products.
What is the Impact of a Catastrophic Injury?
The human body is resilient. Many people will completely recover after a terrible car crash, slip-and-fall, or workplace mishap. Unfortunately, that’s not the case for catastrophic injuries.
Sometimes, the physical damage is so devastating that the victim is left with long-term, even permanent, needs. Often, this means a close loved one must devote considerable time and expense to caring for the injured person.
Impact on victims:
Life permanently altered by long-term disability
No longer able to work and earn a living
Possibly unable to live independently
Forced to discontinue activities they once enjoyed
Victims can also suffer emotional and cognitive damage. It can be difficult to speak, for the brain to easily form words, or to hold onto precious memories. The daily reckoning with pain and impairment can lead to frustration, anger, and depression.
Some catastrophic injury survivors can require round-the-clock care over a considerable period of time or even the rest of their lives. Others will face a painful, exhausting regimen of long-term physical, mental, and emotional rehabilitation.
Impact on Loved Ones:
Physical and emotional fatigue
Forced to quit job or higher education
Pay for a professional caregiver
Loss of affection, intimacy, and moral support
Children cannot engage with the victim as they once did
For all these reasons, the future of catastrophic injury survivors and their families can seem unacceptably bleak.
Available Legal Claims for Catastrophic Injury Survivors
You are entitled to compensation if another party is responsible for the incident that caused your injuries. The type and amount of compensation depends on several factors. Most key is whether another party’s careless behavior, reckless or intentional actions, or professional misconduct led to the incident that caused injury.
Here are the legal claims used in catastrophic injury matters:
Negligence
Negligence is when one party does not exercise reasonable care and causes harm to another person or their property. Reasonable care is defined as actions a prudent person would take under similar circumstances.
Example One: Matt fails to slow his vehicle for a red light and rear-ends the vehicle in front of him. That’s negligence.
Example Two: While jogging along a trail a bicyclist fails to yield to you and knocks you over. That’s also negligence.
Intentional Torts
An intentional tort is any act intended to harm. This is the legal claim to bring if injuries resulted from a malicious act, such as an assault, an act of fraud, or false imprisonment.
Example One: A person striking another with their fist with an intent to hurt them is the clearest example. However, it can be difficult to recover enough compensation to cover a catastrophic injury from assault and battery. Most insurance does not cover damages caused by an insured person’s intentional conduct.
Example Two: A local butcher shop knowingly displays spoiled meat as “pre-marinated” chicken breast. A customer buys the meat, then becomes critically ill with serious food poisoning that infects multiple internal organs. This is fraud, and an intentional tort.
Premise liability
When an injury results from unsafe or dangerous conditions on someone’s property, this is premise liability. In Colorado, the Premises Liability Act is the sole remedy against a property owner for injuries occurring on the Property of another. Property owners must ensure that potential visitors will not be injured by conditions or hazards that haven’t been fixed. The liability is even greater for businesses that accept paying visitors, such as hotels, theme parks, and apartment buildings.
Example One: Your neighbor invites friends over for a summer cookout. The neighbor is aware that there is a leak coming from the bathroom toilet causing water to pool on the tile floor. He decides that he will fix it some other time. While at your neighbor’s house, you use your neighbor’s bathroom and slip on water that leaked onto the tile floor from the toilet.
Example Two: A 19 year-old girl suffers multiple broken bones and brain injury when the roller coaster car in which she’s riding careens off the track. Investigators learn that the ride had not been inspected in months and prior “inspections” had not been diligent.
Other examples could include inadequate building security, swimming pool accidents, toxic chemical/fume leaks, and slippery water or ice.
Medical Malpractice
Medical malpractice occurs when a negligent hospital, doctor, or other health care professional causes further injury to a patient. The negligence could be the result of errors in diagnosis, surgery, treatment, aftercare, or health management. Some common types of medical malpractice are:
A delayed or incorrect diagnosis, resulting in substandard, ineffective treatment
Prescribing the wrong medicine, or incorrect amount, for a diagnosed condition
Failing to order the proper tests
Performing surgery, or amputation, on the wrong part of the body
Leaving medical tools, such as sponges, gauze, or instruments inside the body
Failing to notice or address problems with anesthesia
Discharging a patient from the hospital too soon
Common Types of Catastrophic Injuries
Like I said earlier, catastrophic injuries are life-altering. Even after a long period of medical treatment and rehabilitation, the survivor probably cannot live life as they had before the injury.
Colorado personal injury law has no single bright-line definition of what constitutes a “catastrophic injury.” Generally, if the survivor requires constant assistance or live-in care, is permanently disabled, or suffers an irrecoverable loss in their quality of life, the injury is labeled as catastrophic.
Here are the injury types most common in catastrophic injury cases:
Traumatic Brain Injuries
Serious injuries of the head can cause life-long damage, such as cognitive dysfunction, speech problems, and limited mobility.
Traumatic brain injury, or TBI, usually results from a blow or jolt to the head or body. An object that goes through brain tissue, such as a bullet or shattered piece of skull, also can cause traumatic brain injury.
Mild traumatic brain injury may affect your brain cells temporarily. More-serious traumatic brain injury can result in bruising, torn tissues, bleeding and other physical damage to the brain. These injuries can result in long-term complications or even death.
Spinal Cord Injuries
The spinal cord relays messages between the brain and the rest of the body. Damage to it can lead to full or partial paralysis. That’s not all. Spinal cord injuries also cause:
respiratory and circulatory problems,
exaggerated reflexes and spasms,
chronic pain, and
loss of bowel and bladder control.
Most spinal cord injuries result from a sudden, traumatic blow to the vertebrae. The fractured bones then push into the spinal cord and its nerves. In rare cases, an injury can even sever, or split, the spinal cord.
Because a damaged spinal cord can result in partial or total paralysis, the survivor’s ability to work or perform everyday tasks ends or becomes limited.
Multiple Bone Fractures
Multiple broken bones, or large bones with multiple fractures, can be catastrophic on their own. They often require complicated surgery, and even then the break may not properly heal. The recovery process can involve highly complex surgery. For example, rods, metal plates, pins and wires can be placed inside the bones, to hold them together as they heal.
Open fractures occur when the force of the injury causes the jagged bone to push through the skin. These breaks take longer to heal and are more easily infected.
Displaced fractures happen when considerable gaps form between the broken pieces of a bone. These often require surgery to reset.
Comminuted fractures are multiple breaks or shattering in larger bones, such as:
the femur (thigh),
tibia (shin),
fibula (calf),
humerus (upper arm),
radius and ulna (forearm),
clavicle (collar bone),
pelvis (hips), and
skull
Organ Damage
Internal injuries happen beneath the skin and muscle. Organ damage occurs when trauma penetrates deep enough to rupture, crush, or tear internal organs. Blunt force or penetrating, cutting force can damage internal organs.
The human body has two types of internal organs:
Solid organs: These include the liver, spleen, kidneys, pancreas. When solid organs are damaged, blood vessels break open and the blood collects inside the organ.
Hollow organs: These sac-like organs include the stomach, bladders, intestines, colon, and ureters. These organs can tear from blunt or cutting force, causing fluids and material to leak out. This results in sepsis and peritonitis, a swelling or rupturing in the lining of the stomach or intestines.
Severe Burns
Burns are tissue damage resulting from exposure to intense heat. The damaging heat can come from any one of a variety of sources, including:
fire,
boiling liquid,
overexposure to radiation, or
chemical or electrical contact.
Burns can be minor medical problems or devastating, life-threatening injuries. Catastrophic injury matters are more likely to involve second- and third-degree burns, which can lead to scarring, blisters, blotchy or leathery skin, numbness, and destroyed nerves.
Treating catastrophic burns depends on the location and severity of the damage. Deep or widespread burns need immediate medical attention. Some people need treatment at specialized burn centers and monthslong follow-up care. Complications from severe burn injuries can include:
Bacterial infection, which may lead to sepsis
Fluid loss, including low blood volume
Dangerously low body temperature
Difficulty breathing from the intake of hot air or smoke
Scars or ridged areas caused by an overgrowth of scar tissue
Tightening of skin due to scarring, which can lead to bone and joint problems
Disfigurement
One of the worst aspects of surviving a catastrophic injury is disfigurement. Even if the internal damage heals and the disabilities can be managed, the survivor’s appearance remains a permanent reminder of the accident.
Disfigurement is when a person has scarring, burns, one or more missing limbs, or a mis-shapen face or body as a result of the injuring event. No amount of physical healing and coping can replace a shattered face, a missing limb, or permanent scarring.
For this reason, disfigurement can lead to emotional or psychological distress. This includes negative body image, depression, social withdrawal, and other problems. This psychological pain is real and may continue for years, or even the rest of the survivor’s life.
Common Causes of Catastrophic Injuries
Some of the most common sources of catastrophic injuries are:
Car wrecks
Motorcycle and boating incidents
Bicycle or Pedestrian collisions
Workplace injuries
Slip-and-falls
Falls from heights
Sport and recreational activities
Construction related incidents
Medical mistakes
Defective medical devices or drugs
Legal Issues in Catastrophic Injury Cases
When someone’s negligence or recklessness leaves you or a loved one in pain and incapacitated, you’re entitled to compensation. So … how do you go about getting it?
The money you seek must come from either the at-fault party, their employer, or their insurance company. The other party will not want to pay — especially on a catastrophic injury claim. Even if they must, they’ll try to pay as little as possible.
This is why getting fair compensation requires a legal process. Your catastrophic injury attorney will handle most of the details. Still, there are some basics anyone should know before filing an injury lawsuit.
Determining Liability in Catastrophic Injury Cases
Who is ultimately responsible after an incident causes devastating injury? Determining that someone else is liable for the injuries suffered is one of the keys to receiving compensation.
Establishing liability depends on the nature of the event which caused the injury.
Car Accident
Colorado is an at-fault state. This means the persons or entities who likely caused the incident, or their insurance provider, must compensate the injured party or parties.
A person or entity is usually at fault due to:
Negligence: failing to exercise reasonable caution to avoid causing harm
Recklessness: willfully abandoning caution
Comparative Fault in Auto Wrecks
Colorado adheres to a statute of comparative fault (Colorado Revised Statutes 13-21-111) in determining whether an injured party may recover damages, and in what amount. Here is a concise breakdown of comparative fault in Colorado:
If both drivers are equally to blame, neither is eligible to collect damages.
Injured Motorists determined to be 50 percent or more at fault are not eligible to receive damages. Those who are less than 50 percent at fault will see their compensation diminished by their percentage of fault.
For example: A motorist suffers $65,000 in damages in a crash. However, he was speeding and determined to be 30 percent responsible. Therefore, he can only recover $45,500. That’s $65,000 reduced by 30 percent.
When both drivers in a wreck receive some kind of citation, determining liability and recoverable damages gets even more complex. This is why it’s imperative to retain legal counsel as soon as possible.
Determining Liability After an Auto Wreck
After a serious car wreck, an at-fault motorist must be identified and fault must be proven. However, reaching that point is not always simple, even when it seems obvious to everyone involved.
The police report for the wreck can provide information that will help indicate liability. However, a police report or even a citation is not conclusive to establishing fault in a civil damages case. It’s often necessary to gather additional data, especially when assigning proportions of blame. This information can include:
Pictures of the scene,
Camera footage from either intersection traffic cameras, business surveillance cameras or even video doorbell footage from neighboring homes,
Eyewitness statements,
Citations, if any are issued
Skid marks,
Damage to the vehicles,
Other property damage
Once your attorney has collected all the relevant data, they will begin assembling a case to demonstrate the other driver’s liability.
Premises Liability
When an injury-incident happens on someone else’s property — be it private or public — premises liability comes into play.
Colorado’s premises liability statute (Colo. Rev. Stat. 13-21-115) lays out what duty of care property owners must observe for specific others, such as customers, guests, pedestrians, and trespassers. It states that:
A trespasser may only recover damages willfully or deliberately caused by the landowner. In Colorado, a trespasser is anyone who wanders onto the property without being invited as a guest or customer. Many public establishments must anticipate trespassers.
A licensee, or social guest, may only recover damages if the landowner failed to “unreasonably” address or warn about dangers they created and/or knew about.
For example: Harlan invites Peter and his pregnant wife to his house for a pre-Christmas dinner. The front stone steps are crumbly and uneven. Harlan has been warned to fix the steps, but he hasn’t because he always uses the garage entrance. Peter and his wife arrive and use the front steps, not seeing in the early dark how cracked and slanted they are. The steps give way under Peter’s wife, and she takes a hard fall, resulting in a broken ankle and pregnancy complications.
In the above example, Harlan can be held liable for those injuries. He knew the front steps were dangerous, never fixed them, and failed to warn his dinner guests. Harlan should have anticipated that guests would use the front steps.
Invitees, or customers, are owed the highest duty of care. Invitees can sue for the unreasonable failure to protect against dangers or safety hazards the landowner knew about, or
should have known
Medical Malpractice
Perhaps the worst kind of catastrophic injuries are those inflicted by negligent professionals in the healthcare field. Unfortunately, however, the State of Colorado has created laws causing compensation to be generally capped at $1 million dollars, but there are exceptions.
Establishing liability in medical malpractice matters can be difficult. The injured plaintiff must first establish negligence. Next, they must show that the negligence fell below the required standard of care.
Establishing Negligence
First, the four standards of negligence must be met. That is:
The healthcare worker or doctor owed the patient a duty of care;
the healthcare professional’s conduct fell below the standard of care owed by professional in their field
the plaintiff was injured,
and
The healthcare professional’s breach of duty caused the injury.
Each of those four tenets must be shown to establish a case for medical malpractice. However, Colorado has modified comparative negligence statutes (C.R.S. 13-21-111) which also apply.
I have discussed above how modified comparative negligence determines proportional liability in automobile wrecks. The same principles apply in medical malpractice. If a plaintiff …
withholds important information about their medical history,
fails to follow the doctor’s orders
is not honest about what medications or drugs they’re taking …
… then he or she could be found at least partially at fault for any mistake the healthcare worker made which injured them.
An Example of Modified Comparative Negligence
A busy emergency room physician briefly visits with Myrtle who is having heart problems. The physician and staff ask Myrtle about her and her family’s medical history. Nobody asks if she’s currently taking any medication. Myrtle thinks she should tell the doctor she’s already on blood pressure medication, but she doesn’t.
The doctor writes Myrtle a prescription and releases her. Days later, Myrtle suffers a stroke, as the new prescription reacted badly with the blood thinners she was already taking. The doctor gets most of the blame for failing to ask the patient such a basic question. However, Myrtle gets 10 percent of the blame for not telling the doctor she was already on blood pressure pills.
Certificate of Review
Once you file legal action against a medical professional, you must take one other step to set the case in motion.
Colorado law requires filing a document called a Certificate of Review. This document certifies that:
You have consulted with an expert,
the expert reviewed the facts of your injury case,
and
concluded that your filing has merit.
This certificate must be filed within 60 days of serving your complaint against the at-fault medical professional or organization. If you don’t meet that 60-day deadline, your case will be dismissed.
This only applies in cases against licensed professionals.
Workplace Incidents
Most injuries or illnesses that occur in the course of performing one’s job are handled through Worker’s Compensation Insurance, not civil litigation.
If you or someone close to you suffers a catastrophic workplace injury, you must file a claim with Colorado’s Department of Labor and Employment.
The State of Colorado requires all public and private employers, with limited exceptions, to provide workers’ compensation coverage for their employees if they employ one or more full or part-time workers, including family members.
Even if you are filing a Worker’s Compensation claim — and especially after a catastrophic injury — it’s important to also retain an attorney. Having legal representation helps ensure a smoother and fairer path to compensation.
Statute of Limitations in Catastrophic Injury Cases
No matter how badly you or your loved one is injured, the amount of time to file civil action is limited. A statute of limitations is a law establishing how much time an injured party has to sue the party at fault.
There are two reasons for a statute of limitations to bring lawsuits:
To preserve evidence and witness testimony, and
To be fair to potential defendants. They should not have to defend themselves against claims from the distant past.
If you wait too long to hold an at-fault party accountable for your injuries, you risk having your entire case dismissed.
Specific Deadlines
Generally, in Colorado, the statute of limitations for personal injury lawsuits is two years (C.R.S. 13-80-102(a)). However, it extends to three years for automobile related injuries.(C.R.S. 13-80-101(n)). It shrinks to one year if an injury was caused intentionally, through assault, fraud, or false imprisonment.
The clock starts ticking on the day the claim has been accrued. That is either the date of the incident or injury, or the day the plaintiff discovered the injury and incident
Investigating and Building a Catastrophic Injury Case
One of the first things that happens after a catastrophic injury event is the at-fault party’s lawyer or insurance company launches an inquiry. Yes, they want to know what happened. However, they’re also looking for ways to shift some blame onto you to minimize your claim.
This is why you need a personal injury litigator in your corner. You want someone looking out for you, someone empowered to conduct their own investigation
The Investigative Process
As you concentrate on your recovery, your attorney will protect your legal rights while making sure you’re fully compensated.
Here is a detailed description of what your personal injury lawyer can do.
Investigate the Event
Your attorney will need a comprehensive understanding of what happened. This means gathering all possible data relating to:
exactly what happened to you,
how it happened, and
whether you or the at-fault party could have prevented it.
Evidence could include:
police and medical reports
CCTV footage
photographs, video of the accident/event scene
site inspection and accident diagramming
witness statements
accident re-enactment
background information on defendant if necessary
other documentation that could strengthen your case
Examine Defective Products
If your injury resulted from a product that malfunctioned, your lawyer will need to take possession of it. This will allow him or her to bring in experts to investigate what went wrong. If the product is a food or medicine, your lawyer will send samples to a laboratory for testing.
Your attorney can get tests done on the defective product without damaging it, or what’s left of it. The at-fault party or manufacturer might allow the product to be destroyed in testing, to eliminate evidence.
The Other Side Also Investigates
The more serious an injury, the more the other side will try to minimize what they must pay. This especially applies to insurance companies.
Insurance company investigators will try to uncover evidence by:
running background checks on the injured party/parties to uncover potentially damaging information.
reviewing the injured person’s social media accounts for behavior that contradicts their injuries.
talking to friends, neighbors, family members, or coworkers to help disprove the severity of the injury claim.
locating images or witness testimony of the injured person walking without their crutches, skipping doctor’s appointments, or participating in physical activities.
Do not help the insurance company build a case that lessens their liability. Don’t over share about your injury on social media and at work.
Protect Your Medical Records
After an incident causing serious injury, the defendant’s insurance company will send the victim a “medical release” form. This form seeks permission for the insurance company to scrutinize the victim’s entire medical history. Do not sign it.
While the insurance company needs the medical records relevant to injuries caused by the accident or event, permitting access to your full medical history can only hurt your case and unnecessarily invade your right to privacy. The insurance investigators will look for:
pre-existing conditions
anything else it can use to undermine your case
The at-fault party’s insurance provider wants to pay you less, not more. No matter how affable and sympathetic they sound over the phone, or in correspondence, they are not your friends. They don’t want to pay more than they have to. Therefore, don’t give them more information than you have to.
“Talk to My Attorney”
Better yet, put a barrier between yourself and all representatives of the at-fault party. Your attorney will redirect all communication from the other party, and their insurance, to his or her office. This way, you can focus on your recovery without being pestered by professionals attempting to undermine your claim.
Building a Strong Catastrophic Injury Case
An effective argument in a catastrophic injury matter begins with eliminating all questions about who was at fault. This means anticipating and defeating the defense’s arguments before they can make them.
Anyone who suffers a devastating injury in an accident will have to clear one, two, or even all three of the following hurdles to be awarded proper compensation. They are:
Contributory Negligence
The argument goes like this: You would not have been injured if you had exercised proper caution before the accident occurred. Therefore, you are not entitled to compensation.
This is the defense’s way of admitting that, yes, an obvious danger existed. However, the plaintiff’s own negligence contributed to the accident that caused their injuries.
Example: Slip and Fall at the Pool
A teenager slips and falls while chasing his friends around a hotel swimming pool. He suffers a traumatic brain injury and a broken arm. The defense would argue it’s wrong to hold the hotel responsible for this injury. After all, swimming pools are filled with water, and the surface around the pool gets wet and slippery. Anyone exercising reasonable caution should not have been running that fast on wet tile or concrete.
A Possible Rebuttal
Anticipating such a defense, a personal injury lawyer would explore whether the hotel took necessary steps to minimize the obvious risk.
Were they aware that the concrete or tile in certain areas was needlessly slippery?
Were there prominent signs warning swimmers not to run?
Was a lifeguard on duty to prevent reckless behavior or horseplay?
Had any mold or algae formed on the surface due to poor maintenance, making it even more slippery?
Have there been more slip-and-fall accidents at the pool in the past? If so, what has the hotel done about them?
Has the hotel heard and rejected proposed improvements that would make the surface around the pool safer?
Colorado premises liability law states that all lodging establishments that make it a business to invite paying guests to stay with them must take steps to protect them from safety hazards or other dangerous conditions they either know about or should know about. C.R.S 13-21-115
Comparative Negligence
The defense asserts that the defendant and plaintiff both made mistakes that caused the accident. This argument is used often after automobile accidents when each driver committed simultaneous infractions that led to a crash. The defense argues that the plaintiff was at least 50 percent responsible for the accident, and therefore is only entitled to 50 percent compensation, or none at all.
Colorado law allows this defense in R.S 13-21-111, which I summarize here with bullet points:
Contributory negligence means that if a person is partly responsible for their own injury, they may not be able to receive full compensation.
The amount of compensation the plaintiff may receive will be reduced based on their level of responsibility for the injury.
If the plaintiff’s responsibility is equal to or greater than the defendant’s responsibility, the plaintiff may not receive any compensation.
Example: Collision on the Highway
You switch lanes on a highway without signaling, and get rammed by a vehicle that was traveling 20 miles per hour over the speed limit. Because they were speeding, you didn’t have enough time to react and move back into your lane. The defendant argues they were speeding ahead because they never saw you signal a lane change. After a full investigation, the defendant is ruled 60 percent responsible.
Your total compensation would be $450,000 if the defendant had been 100 percent at fault. However, you only can receive 60 percent of it, or $270,000, due to your abrupt lane change and comparative negligence.
A Possible Rebuttal
After an auto collision caused by more than one driver’s traffic infraction, it’s difficult to recover 100 percent compensation. However, there are ways to argue that the defendant’s recklessness deserves a greater portion of blame.
Look again at the example above. The injured plaintiff attempted to switch lanes without first signaling. That’s a traffic violation. However, the defendant was going at least 20 miles per hour over the speed limit, and on the highway. That’s the more serious traffic violation, whether it causes a wreck or not.
How much difference would a lane-change signal make to a car accelerating at speeds of 80 to 90 miles per hour? Because of the defendant’s recklessness and high rate of speed, neither driver had enough time to react. Additionally, simple math may be able to establish that had the driver been going the speed limit, a collision would not have occurred even despite the lane change without a signal.
A convincing argument could turn a 60 percent compensation award into 75 or 80 percent. That would mean at least $67,500 more than the $270,000 calculated at 60 percent of $450,000.
Failure to Mitigate Damages
The defense argues that the plaintiff allowed their injuries to get worse by not seeking prompt, proper treatment. This defense is rare in catastrophic injury cases, for obvious reasons.
A victim sustaining devastating physical injuries from an incident will immediately go to the hospital in an ambulance. However, some injuries caused by food poisoning or defective products might not seem “catastrophic” at first.
Example: Food Poisoning
Two days after eating at a national chain restaurant, a man experiences abdominal cramps, chills, and occasional nausea. He leaves his work after a half day to “sleep it off,” figuring he’s just under the weather.
However, the man feels even sicker the next day. Headaches. Vomiting. Diarrhea. He is so weak and dehydrated by the evening that a friend must drive him to the emergency room.
The man learns that he contracted a nasty salmonella infection from the restaurant, and it has spread beyond the digestive system into his bloodstream, infecting his heart and other organs.
The defense might argue that the man should have seen a doctor sooner. However, it’s a weak argument unless the plaintiff had any other reason to suspect this was more than a normal illness.
Calculating Damages in a Catastrophic Injury Case
Your life has been altered by someone else’s negligence, malpractice or reckless behavior. Even if a full recovery is possible, you’re probably facing a steep climb. This includes a variety of medical expenses and a long period of lost income.
This is why it’s vital that you receive fair compensation for your injuries. To make that possible, your catastrophic injuries attorney must address every part of your life that will be affected.
In Colorado, you can be compensated for both specific economic losses and needs, and for general, non-economic needs.
Economic Compensation
Economic damages are all the personal injury losses that can be added up on a calculator. These include:
current and future medical bills,
property damage,
lost income
current and future accessibility needs, and
any other out-of-pocket expenses incurred from the accident or event
A complete and accurate assessment of the full economic impact of your catastrophic injury will be important. Collecting receipts and adding up all up these amounts can be daunting. Fortunately, your attorney can consult experts to help with this.
Medical Expenses
Anyone who has suffered catastrophic injury could require customized medical care for a significant period of time into the future. Treatment might be necessary for the rest of their life. This must be taken into account when figuring damages.
In Colorado, injured plaintiffs are allowed to claim the full amounts charged by health care providers. The amount already paid by the victim’s insurer is not subtracted. This same rule applies to payments made by Medicare or Medicaid on behalf of the plaintiff.
Future Care
Many Colorado catastrophic injuries claims rely on a life care plan. This plan is a comprehensive assessment of the plaintiff’s current and future medical needs. With input from doctors, nurses, therapists, and vocational rehabilitation experts, a life care plan details all the victim’s current and future needs, and the associated costs. Future care can include:
Future surgeries and injections
Physical and mental therapy
In-home care
Home modifications, such as wheelchair ramps or other accessibility improvements
Orthotics and prosthetics
Other medical equipment
Lost Income
Lost income is all the earnings a person has lost, and will lose, because of their injuries. If you are able to work again after two years, you can be compensated your full annual salary for each of those years.
A person who can never work again due to devastating injury is also compensated for lost income. Their lost future income is projected over a certain number of years to arrive at a figure.
Even if devastating injury occurs while the victim is unemployed, or in college, they can be compensated for loss of earning capacity. The only question is whether the accident destroyed or diminished the victim’s capacity to earn money.
Property Damage
It is natural to think of traffic accidents in this context. However, another person’s recklessness, especially an intentional attack, can lead to accidents in the home, or any property belonging to the victim.
Non-Economic Compensation
Also called “general damages,” non-economic compensation is an essential part of recovery. A serious injury does not only cause financial problems for the victim, it can lead to short-and long-term personal and emotional problems that must be addressed.
While it’s possible to total up a dollar amount for economic compensation (hospital bills, lost income, and rehabilitation), it’s harder to measure the toll such an abrupt and permanent life change can have on a survivor’s mental and emotional health.
Non-economic damages compensate the victim for any or all of the following:
Physical and mental pain and suffering
Inconvenience
Emotional distress
Lost quality of life
Calculating Non-Economic Compensation
Most catastrophic injury cases — about 95 percent — end up settling before a jury can determine the exact amount of compensation. However, in the event such a case goes to trial, the jury will be asked to determine the amount of compensation owed.
While economic damages can be fairly straightforward to calculate, non-economic damages are less concrete. In fact, there is no specific formula or method the court provides to a jury to determine those values. There are a variety of methods that lawyers suggest to a jury to determine these values. The two most popular are the multiplier method and the per-diem method.
The Multiplier Method
The jury totals the amount of economic damages — healthcare bills, loss of income, etc. — and multiplies that figure by a number from one to five. The multiplier is one for relatively less serious injuries and five for the most serious. This method is most often applied to injuries requiring long-term or permanent care.
For example, if the total amount of economic damages comes to $320,000, and the jury sees fit to use a multiplier of three, then the total compensation would be $960,000.
The Per-Diem Method
The jury multiplies a certain number by the amount of days the survivor could foreseeably experience pain and suffering from the accident. Often, the first number is based upon the survivor’s daily wage. The multiplied sum is then added to the total economic damages.
For example, let’s use the total economic damages of $320,000 from the example above. The jury starts with the survivor’s pre-injury salary, say $260 per day. Next, the jury determines the victim could experience pain and suffering for three-and-a-half years, or 1,113 days. Multiply that by $260 and the amount comes to $331,500, and a total compensation of $651,500 after adding economic damages.
Loss of Consortium
Loss of Consortium is a derivative claim brought by the injured’s spouse. In Colorado, “loss of consortium” refers to the uninjured spouse’s loss of:
moral support,
companionship,
sexual relations, or
affection from a spouse.
assistance of household services
This compensation is awarded not on behalf of the injured party, but for their spouse. The amount may depend on a number of factors, including, but not limited to:
the length of the marriage;
the life expectancy of both partners;
the degree of the injuries to the injured spouse; or
an inability to perform previous duties, functions, or interactions.
Loss of consortium damages are currently capped at $250,000 plus inflation.
Caps on Non-Economic Compensation
Colorado still limits the amount of non-economic damages compensation a survivor may receive in most cases. The exact capped amount depends on who caused the injury.
Currently, no catastrophic injury claimant can receive more than $613,760 in non-economic damages alone. The cap can be exceeded only when clear and convincing evidence shows that an increase is justified. — Colo. Rev. Stats 13-21-102.5
The cap is adjusted for inflation every few years. It was last updated on January 1, 2022.
Note: The non-economic damages caps described above are not disclosed to the jury. Instead, the caps are imposed by the court after the jury renders a verdict. — CRS § 13-21-102.5(4).
Medical Malpractice Damage Caps
Colorado medical malpractice cases cap total damages at $1 million dollars, which includes any amounts for “pain and suffering.” Pain and suffering are capped at $300,000.
In rare cases, a plaintiff can be awarded more than $1 million if the court finds just cause, or that the $1M cap is unfair. — C.R.S 13-64-30
