During years like this, when we are confronted with multifaceted challenges like those ahead of us, we are reminded of the value of advocacy and partnership. These threats to our stable tort environment aim to uproot many of our long-held reforms that have allowed Colorado to remain a destination state to practice medicine and receive care. We understand the gravity of the challenges that lie ahead and aim to keep you apprised of the latest developments and engaged in the effort alongside Colorado Medical Society, COPIC, Colorado Hospital Association and the broader coalition.

Update on filed ballot measures and Senate Bill 130

Recent newsletters featured the two ballot measures filed by the Colorado Trial Lawyers Association (CTLA) in addition to the two countermeasures filed by the Coloradans Protecting Patient Access coalition (CPPA). The CPPA coalition is the broader health care coalition of which CMS is a member in addition to our partners at the COPIC and the Colorado Hospital Association, among many other health care focused organizations.

As a refresher, CTLA’s filed measures – Initiatives 149 and 150 – are attempting to remove privacy protections within the current medical peer review process and remove Colorado’s current caps on non-economic damages, including in medical liability cases. Both of these measures are currently in front of the Colorado Title Board and are making their way through the process, which will determine if they will be placed on the November ballot.

CPPA’s filed countermeasures – Initiatives 170 and 171 – aim to cap attorney fees in cases of personal injury and wrongful death at no more than 25% of their client’s total damages award and introduce a sunshine law requiring lawyers in personal injury and wrongful death cases to disclose litigation costs to be borne by clients in civil cases proactively and transparently.

Thank you to those who have expressed feedback on the above measures and your willingness to engage alongside CMS, COPIC and CPPA in this fight. In addition to CPPA’s efforts at the ballot, our latest newsletter highlighted the filing of Senate Bill 130 – the bill updating Colorado’s cap on non-economic damages. One reason for the introduction of Senate Bill 130 was to initiate dialogue and willingness to engage in a reasonable conversation on these critical issues at the legislature, where we believe this conversation should be had versus at the ballot. The bill is in a holding pattern and has not yet been scheduled for a committee hearing as stakeholding and negotiations are ongoing. Stay tuned and look for updates on how to engage further in this effort.

A tale of two tort environments

For this month’s newsletter, in addition to providing an update on the above efforts, we want to provide contextual comparison highlighting the value of maintaining a balanced tort environment, including specific reforms such as caps on damages. 

States with tort reforms, like caps on non-economic damages, experience a reduction in the number of claims filed and lower severity compared to states with no such reforms present. Specifically, in a recent study of 22,000 paid claims from 2011 to 2020, states with caps on non-economic damages reported a lower average settlement compared to states without a cap. Additionally, the percentage of claims resulting in settlements of at least $1 million more than doubled from 6.5% to 14.2% when comparing states with caps to those without. 

Furthermore, nuclear verdicts (jury verdicts in excess of $10 million) occur far more frequently in those states without caps on non-economic damages which have far-reaching implications on the entire health care delivery system. These higher lawsuit costs, when upheld, are incorporated into higher insurance premiums for ALL physicians and other medical professionals, who in turn need to charge higher amounts for their services or limit or eliminate high-risk services altogether to cover these expenses. The combination of increasing medical costs can exacerbate the current physician shortage, leaving patients in some areas (particularly rural and underserved urban areas) without adequate health care options or access to specialized medical care. The chance of obtaining a nuclear verdict has also encouraged many plaintiff attorneys to reject reasonable settlement offers, make unreasonable demands, and push forward to trial, thus prolonging litigation and costing more time and resources of the judiciary, plaintiffs and defendants. 

In conclusion, our balanced, stable tort environment has allowed Colorado to maintain its status as a destination state to practice medicine and receive care. It has allowed health care professionals to remain focused on patient care and the early reporting of concerns for the purpose of improvement, rather than on how to defend care and bury concerns. If CTLA’s filed measures are successful, they would uproot many of our long-held reforms, change the culture of care, and destabilize our medical climate. COPIC and the broader CPPA coalition understand the significance of protecting these reforms and remain fully committed to defending them across all three jurisdictions – the courts, the legislature, and the ballot.

Categories: Communications, ASAP