Colorado Supreme Court

Thursday, January 01, 2015 11:27 AM
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Victory for judicial stability: It speaks for itself

by Susan Koontz, JD, CMS General Counsel

Christmas came early in December for prospective physician defendants when the Colorado Supreme Court resolved a significant legal ambiguity under a legal doctrine called res ipsa loquitur (“it speaks for itself”).

The Court upheld the COPIC-insured physician’s argument that the burden of proof does not shift to a physician defendant even if the plaintiff argues that an injury while in the physician’s care “speaks for itself” as negligent. The Court’s decision overruled an old case that was being leveraged to unfair advantage by trial attorneys. The Court noted that the plaintiff has ample opportunity to discover and submit evidence to establish causation and the burden of proof remains on the plaintiff throughout the trial to prove their negligence case.

This is the third successive ruling in the last six months favoring stability and consistency in Colorado’s tort law framework. The Court’s views continue to sustain a public policy interest in preserving well-established legal principles that have produced one of the most stable medical liability environments in the country.

This summer, the Court clarified the admissibility of medical “hearsay” statements made for purposes of diagnosis or treatment in favor of physician defendants. The Court noted, in reversing a verdict against a COPIC insured, that diagnosing does not have a definitive end point and frequently evolves as more information and evidence is gathered or comes to light and thus is not impermissible “hearsay.”

Shortly after the hearsay ruling, the Court overruled an administrative law judge decision that would have allowed the discoverability of confidential professional review records, notwithstanding CMS-backed peer review reform legislation enacted the previous summer that stated that such records are not subject to discovery.

CMS and other allies including the University of Colorado and the Colorado Defense Lawyers Association joined with COPIC and filed friend of the court briefs in each of these cases. The Colorado Trial Lawyers Association filed briefs on the other side. You can read all the briefs and related talking points on these three cases at

Posted in: Colorado Medicine | Practice Management | Legal and Ethics


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