A complex bargain between trial lawyers, business interests and the insurance industry will raise award caps in Colorado personal injury and medical malpractice cases to as high as $2.1 million, in exchange for lawyers giving up a ballot effort to eliminate the caps altogether.
Colorado’s decades-old strict caps on noneconomic damages and wrongful death cases have frustrated trial attorneys and the families they represent. The lawyers say the current $300,000 cap on medical malpractice injuries, for example, strongly discourages families from bringing legitimate cases when lawyers are risking $100,000 to $200,000 in costs to bring the case.
Business trade groups and insurance companies, meanwhile, say higher or unlimited awards would freeze up Colorado’s economy and health care with lawsuits.
“Removing the caps on noneconomic damages would have been a $2.1 billion hit to our state economy. That would have been felt by businesses and consumers alike in the form of increased prices for goods and services, higher insurance rates and lost jobs,” Lyn Elliott, vice president for state government relations for the American Property Casualty Insurance Association, said in a statement announcing the bargain. “This deal strikes the balance needed to prevent further deterioration of our legal and fiscal environment.”
Gov. Jared Polis joined in the announcement of the compromise deal, and is expected to sign it.
Trial lawyers in Colorado said they were giving up a lot of ground by foregoing a ballot issue aimed at striking down caps altogether, but called the increase in possible awards to families a major achievement.
“It’s a huge step in the right direction,” said Denver attorney Kurt Zaner, who recently helped win a $15 million federal court jury award for a client severely injured in an oil tank explosion, but will see the client limited by Colorado’s 1980s-era law to about $600,000 for pain, suffering and mental anguish.
The bill won’t help his client, Zaner said, but “does create some real progress” for everyone else seeking an award.
House Bill 1472 allows for inflationary increases to the caps, noted Kari Jones Dulin, president of the Colorado Trial Lawyers Association. It also will for the first time allow damage claims to be filed by siblings and heirs of medical malpractice victims, previously limited to spouses and parents, she said.
The longstanding caps have been “an access-to-justice problem, a fairness and equity problem for Colorado’s seriously injured,” Jones Dulin said. “Everybody had to be willing to compromise, and that’s what happened.”
The news could even be better for victims of injuries that judges deem to be catastrophic, Zaner said. If a jury awards $1.5 million for noneconomic damages in an injury case, for example, Colorado’s laws allow the judge to double that to $3 million under special circumstances. That still may “fall short of what the jury wants to give,” but could clearly have a big impact on clients’ lives, Zaner said.
The trial lawyers said the bill will:
- Increase noneconomic damage caps in general injury cases to $1.5 million for claims filed after Jan. 31, with an inflation adjustment in 2028 and every two years after.
- Increase wrongful death caps in general injury cases to $2.125 million, with similar inflation adjustments afterward. Siblings and siblings’ heirs would also be allowed to make claims.
- Increase noneconomic damages in medical malpractice cases, a separate injury category, to $875,000, with a five-year graduated phase in of the increases. Inflation adjustments would begin in 2030.
- Increase the wrongful death cap in medical malpractice to $1.575 million, with a five-year phase in, and similar inflation adjustments after that.