Whether you are searching for a medical provider for yourself or a loved one, it is extremely important to take time to research the potential provider prior to receiving medical treatment from that person. The vast majority of people will see multiple medical providers throughout their lifetime and while many of these visits will be routine well-check exams or for the common cold, many of them will be for far more serious ailments. Researching your medical provider beforehand will ensure that he or she is qualified to handle these serious medical issues just as competently as the simpler ones.

When most patients think of “researching” a potential medical provider, they think of asking a friend, family member, or current physician for a recommendation. While this is certainly an important step in the process, and one I would recommend, it does not inform you of the potential provider’s disciplinary background, whether he has ever been deemed by the Colorado Board of Medical Examiners to be unfit to practice medicine, or if he has been the subject of previous litigation related to his practice of medicine. While not all this information may be available to the public, much of it is and can be found on the Colorado Department of Regulatory Agencies website: https://www.colorado.gov/dora. This site is very simple to navigate and will allow you to enter a provider’s first and last name to obtain any available public disciplinary information on file regarding the provider. More often than not, you will see no disciplinary action on file and can rest assured that your chosen provider is competent to treat you. However, with the minimal amount of time it will take you to perform the search, it is an important and valuable step in your research process.

In addition to the above, I would encourage you to meet with the medical provider in-person prior to signing on as his or her patient. It is important for you to feel that your provider knows you as a person, and not just a patient. It is equally important for you to actually like your provider and feel comfortable describing your medical concerns in detail with him or her. The good news is that there are more than enough medical providers to choose from and if you don’t click with one, you will have no trouble finding someone better suited for you.

Lastly, when dealing with a serious medical issue, always get a second opinion. Even if you have the utmost confidence in your doctor and a terrific rapport, no one provider knows everything and you have nothing to lose by seeing someone else and getting his or her thoughts on your diagnosis and provider’s proposed treatment plan. The health of you and those you care about it not something to take lightly, so take the time to ensure you are receiving the best medical treatment available to you.

A lot of people who have been injured in an accident often wonder what their next step should be and how to go about initiating a claim with the at fault party.  Unfortunately, more often than not, a person becomes discouraged thinking he or she doesn’t have enough money to hire an attorney and seeks no further action.  Don’t let this happen to you!  The Denver personal injury attorneys at Kidneigh & Kaufman will work for you a contingency fee basis, meaning we don’t get paid if you don’t get paid.  We also front the necessary costs and expenses associated with your case, making it so you don’t need to spend any of your own money for us to work on your case. 


Having an attorney work on a contingent fee basis is of great benefit to a person who has been injured and doesn’t have the money to hire a lawyer on an hourly basis.  An unexpected accident brings unexpected and large medical bills and if your injuries are preventing you from working and earning an income, the last thing you need to worry about is how you can afford to pay your lawyer.   Hiring a Denver personal injury lawyer at Kidneigh & Kaufman on a contingency fee basis makes it so you can focus on what’s most important: getting the necessary medical treatment so you can start living your life again. 


Not only do our Denver accident attorneys work on a contingent fee basis, but your initial consultation is FREE!  If you’ve been injured in an accident, call us today at 303-393-6666.


It’s always surprising to me when I meet with clients who have no idea what type of auto coverage they have, what the doctor diagnosed them with, or what type of medical treatment they are receiving.  This is just to name a few because when it comes to understanding these types of issues, most people tend to bury their head in the sand and assume (hope?) they’re being provided with the correct information.  I will tell you what I tell each of my clients: do not bury your head in the sand, take charge of these important matters, make it a point to understand what your agent, doctor, lawyer, etc. is telling you, and if you don’t understand then ask questions until you do!


When it comes to purchasing your car insurance, make your agent explain exactly what your options are and make sure you are protected with bodily injury coverage, underinsured/uninsured coverage, and property damage coverage.  Often times when a client comes in and is lacking certain coverage, he or she has no idea they didn’t have the coverage and when I explain how little if would have cost to obtain it they are upset and confused as to why their agent never explained it to them.  Most people tell me they simply signed the papers their agent gave them and assumed they had the proper coverage.  Don’t assume anymore.  Be proactive and don’t sign anything until you know exactly what type of coverage you have and are certain that you will be protected in the event of an accident.  If you’re not certain and your current agent isn’t understanding your needs, find another agent.  Don’t wait to find out you didn’t have the proper coverage until you’ve been in an accident and are out of luck.  Similarly, when you purchase homeowners insurance or life insurance, be sure you know what you’re getting.


This goes for your medical care as well.  Too often, people assume their doctor knows best and don’t question their treatment.  While this may very well be true, you still need to understand what your diagnoses are and the type of treatment that is being done.  Make your body and health a priority and know what’s going on with it.  Perhaps you’ll find that once you have all the information, you have questions you never knew you’d have or maybe you decide that you aren’t so comfortable with the doctor’s methods and want to seek out a second opinion.  Either way, you can rest assured that you got the information you needed and have a solid understanding of your medical status.


As the saying goes, “knowledge is power”,” so take control, ask questions, get answers, and start getting some of your power back.

Knowledge is power

Failure to Mitigate Damages

In a December 27, 2012 decision, the Colorado Court of Appeals held that it was error for a trial court to give an instruction allowing the jury to find that the Plaintiff failed to mitigate her damages if she “continued to undergo expensive treatment when it was not resolving her pain.”  Under the law, an injured party must take reasonable steps to mitigate his or her damages and as such, may not recover damages for injuries that could reasonably have been avoided.  However, the Court noted that in the context of personal injury matters, “a failure to mitigate usually concerns a Plaintiff’s unreasonable failure to seek medical advice or unreasonable failure to follow that medical advice once received.”


In this case, the Court of Appeals found error in the trial court’s instruction because there is no Colorado case law, statute, or treatise holding that an injured party has a duty to stop medical treatment because it is costly or isn’t helping to resolve the pain. In fact, the general rule concerning failure to mitigate in the personal injury context is “any suffering or disability incurred by one who has sustained personal injury, when the same could have been avoided by submitting to treatment by a physician selected with reasonable care, must be excluded as a ground of recovery.”


Here, the Court found that the instruction was improper because the failure to mitigate assertion didn’t focus on the Plaintiff’s inaction.  In fact, the Plaintiff testified that her medical treatment was helping alleviate her pain but was forced to stop treating because it was too costly.  Accordingly, the Court remanded this case back to the trial court holding that “the court should not instruct the jury that [the Plaintiff] continuing to receive expensive treatment that was not resolving her pain constitutes a failure to mitigate.”


For more information regarding this case, see: Banning v. Prester, 11CA1093 (Colo. App. 2012)

Colorado Courts

If you’ve been injured in an accident recently, you likely know by now the insurance company is not on your side.  You’ve probably experienced difficulty getting the adjuster to call you back, have property damage that still hasn’t been dealt with, and mounting medical bills you don’t know how you’re going to pay.  You shouldn’t have to deal with these issues on top of treating your physical pain and trying to get well.  Denver accident lawyers at Kidneigh & Kaufman can help assist you with these matters, as well as obtain compensation for your personal injuries.


In this regard, Denver accident lawyers at Kidneigh & Kaufman can assist you with:

1.  Obtaining compensation for your injuries and lost wages

2.  Getting your car damage paid for

3.  Finding a medical provider to treat you

4.  Getting your medical bills paid

5.  Dealing with the insurance companies

6.  Understanding your insurance coverage

7.  Evaluating your claim

8.  Obtaining necessary documentation to settle your case

9.  Understanding the law as it applies to your claim

10.  Deciding on whether to accept a pre-suit offer or file suit

In addition to helping you with your personal injury matter, Denver accident lawyers at Kidneigh & Kaufman can also help assist with your criminal defense matters.  Call us today for a free consultation.


When people are involved in an auto accident, the automatic response is to call the police, file a report, and for all parties involved to report the accident to their insurance company to determine liability and damages.  Similarly, when an extreme event such as a plane crash occurs, it is headline news and intense investigations follow the incident to determine exactly what happened and how to prevent such a tragedy in the future.  Yet, when medical malpractice occurs, the reaction is usually the exact opposite.  Hospitals, doctors, and even patients often go to great lengths to keep medical errors quiet and will conduct only the briefest investigation before filing the incident away.


I have no answers as to why this is, but I do know a lot can be gained from investigating a medical mistake.  A 1999 report from the US Institute of Medicine stated that between 44,000 and 98,000 Americans die each year of preventable medical errors.  Preventable is the key word here.  Yet, despite this astonishing number, very little is being done to encourage the reporting of medical mistakes and even less to create a system that investigates these mistakes.  Perhaps this has to do with how our culture views medical professionals and the great respect we have for them.  I, myself, have a huge respect for the medical profession and am eternally grateful for the services they provide to my loved ones and the public.  However, I also understand that accidents happen and too often these accidents are deadly. 


There’s no shame in admitting you made a mistake, the shame lies in sweeping it under the rug and failing to learn from it.  If thousands of people really are dying every year from preventable medical mistakes, why aren’t we doing everything we can to truly prevent them from occurring?  Emergency room physician and author, Dr. Brain Goldman, discusses this in his book The Night Shift: Real Life in the Heart of the E.R..  Dr. Goldman admits that he’s human and has made medical mistakes, but he also acknowledges that medical professionals can learn a lot from these mistakes and considers himself a “student of medical malpractice.”


A project in Washington is currently underway which would encourage consumers to report medical mistakes and unsafe practices by medical professionals.  The American Hospital Association has said “it’s a great concept” and consumer groups have supported the initiative.  While reporting is voluntary, I would encourage anyone who has had an adverse medical event occur to report it.  By doing so, you may very well prevent the suffering of another patient.


Settling a Minor’s Case

At Kidneigh & Kaufman we have been very successful in handling personal injury matters for minor children who have been injured. Most commonly when a minor gets injured in an accident, it is his or her parent who initiates the filing of a claim and who gives authority to the attorney throughout the settlement process.  While a minor’s parent has the authority to settle the minor’s claim, approval is often sought by a probate court as well. 


Probate court approval is generally sought at the insistence of the tortfeasor’s insurance company or if the net settlement is $10,000 or more.  If this is the situation, the Petitioner’s attorney should file a Petition to Settle Personal Injury Claim and possibly a Petition for Appointment of Conservator as well- although a conservator is not mandatory.  It’s important that the Petitioner’s attorney file the documents seeking approval as it would be a conflict of interest for the tortfeasor’s attorney to do so.


The rationale behind seeking probate court approval is to ensure the minor’s settlement funds will be preserved for the minor when he or she reaches the age of 18 or 21 (the age of access varies among probate courts) and is able to access the money.  This protects against any misuse of the settlement funds by someone other than the minor.  If the probate court approves the settlement then the funds will be placed in a restricted account, often through the court itself.  However, in certain situations, the Petitioners may request a certain sum of money be received initially and not placed in the restricted account for payment of past due medical bills, future medical treatment of the minor, or other care that is necessary prior to the age of access.  If appropriate, the court may allow this.


For more information regarding seeking court approval for a minor’s settlement, see Colorado Probate Procedure Rule 16.


Wrongful Death

In Colorado, a statutory right of recovery exists against a tortfeasor who causes the death of another.  The statute of limitations for wrongful death in Colorado is two years and begins to run on the date of the decedent’s death.  This type of claim is governed by the Colorado Wrongful Death Act and C.R.S. 13-21-201(1) and states that only certain parties are entitled to bring a wrongful death lawsuit.  These persons are the decedent’s spouse, “heir or heirs”, or the “designated beneficiary.”  However, if the decedent is single and has no children, the surviving parents are entitled to bring a lawsuit.


It’s important to know that in the first year following the decedent’s death, only the spouse is entitled to make a claim.  The three exceptions to this are 1. if the spouse files a written election to include the heir or heirs in the claim; 2. the decedent is single and has no children or designated beneficiary; or 3. the decedent is unmarried but has heirs.  If an action is not filed in the first year, then in the second year following the decedent’s death, either the spouse, heir(s), or designated beneficiary may file a lawsuit.  In the event, the heir(s) file a separate lawsuit during this second year, the spouse and/or designated beneficiary has the right to join the action within 90 days of the filing.


In order to prove a wrongful death case, the claimant must prove that the tortfeasor negligently caused the decedent’s death.  Like other types of actions in Colorado, there is a cap on non-economic damages.  Currently, the cap is $341,250 and applies on a per-claim basis, not a per-defendant basis.  However, in a wrongful death case arising from a medical malpractice, the non-economic damages cap is $300,000 per the governing Health Care Availability Act.  Economic damages are also available and while there is no cap, such damages can only be recovered by the decedent’s dependents, most often the spouse or minor children.


Kidneigh & Kaufman is experienced in handling wrongful death cases and our attorney are available to answer any questions you may have.

wrongful death

On October 4, 2012 the Colorado Court of Appeals confirmed a bad faith breach of insurance contract award against American Family Insurance.  The case arose when the Plaintiff was seriously injured in a motor vehicle accident in August 2008.  Due to his severe injuries, it was quickly clear that his damages were in excess of the combined limits of the at fault driver and his own underinsured policy with American Family.  As such, the Plaintiff requested American Family tender its policy limits. 


Despite it being clear that the Plaintiff was entitled to the policy limits, American Family delayed payment for several months based on its erroneous belief that it did not have to make payment until the Plaintiff had resolved his medical lien with Kaiser.  Even after Plaintiff’s attorney informed American Family it had no legal basis to delay payment and offered alternative solutions, American Family refused to tender its policy limits.  The Plaintiff then brought this action against American Family.  The district court found for the Plaintiff and American Family appealed.


Based on these facts, the Court of Appeals held that “sufficient evidence supported the trial court’s finding that American Family was liable on the Mahoney’s common law claim” and that C.R.S. 10-3-1116(1) “provides for an award of two times the covered benefit on statutory bad faith claims, regardless of whether the insurer paid the covered benefits by the time of trial.”  Essentially the Court found that American Family acted in bad faith when it refused to tender its policy limits to the Plaintiff when there was clear evidence his damages were in excess of the combined limits and there was no legal basis to withhold payment based on Kaiser’s lien.


Lastly, the Court concluded the Defendant was incorrect in arguing the Plaintiff was only entitled to his reasonable attorney fees incurred in the district court and held that the Plaintiff was indeed entitled to his reasonable attorney fees that were incurred during the appeal as well. 


The entire opinion can be found at Mahoney v. American Family Mutual Insurance Company, 11CA2120 (Colo. App. 2012).


Getting Medical Treatment

If you’ve been injured in an accident, it’s important that you get the necessary medical treatment.  First and foremost if you are injured, you should seek medical treatment so that you can recover as quickly as possible and are not suffering with daily pain.  However, if you plan to make a claim against a third party, it is important you get medical treatment so you pain is documented in a medical record.  Without this written documentation from a medical professional confirming your pain complaints, it is very difficult for an insurance company to evaluate your claim and give your injuries the proper consideration they deserve.


I often hear clients tell me they cannot get the necessary treatment because they are too busy or they think if they relax enough the pain will simply go away.  While you may not have injuries that require long term treatment, it is the rare injury that will just go away and requires no treatment at all.  It’s important to remember that the more time that goes by before you seek initial treatment or the longer your gaps are between treatments the less likely you are to get a good recovery from the insurance company.  These treatment gaps usually cause an insurance company to question how hurt you really were if you didn’t even find the time to go the doctor or if your injuries are really a result of the accident or something that happened in between.


The bottom line is that if you’ve been hurt in an accident, you should seek treatment for your own well-being as well as any claim you may have.


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