Chapter 60 - § 60.3 • CAUSES OF ACTION

• Jurisdiction: Colorado

§ 60.3 • CAUSES OF ACTION

Practice Pointer
All personal injury claims against nursing homes — regardless of how pleaded — require that a certificate of review be filed within 60 days of the date of service of the complaint on the first defendant. C.R.S. § 13-20-602; Teiken v. Reynolds, 904 P.2d 1387 (Colo. App. 1995); see also Baumgarten v. Coppage, 15 P.3d 304 (Colo. App. 2000).

§ 60.3.1—Negligence

Negligence is by far the most common cause of action in nursing home litigation. A negligence claim requires proof of a breach of the standard of care resulting in an injury. See, e.g., Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002); Redden v. SCI Colo. Funeral Serv., Inc., 38 P.3d 75 (Colo. 2001).

As set forth above, nursing home negligence cases typically involve the failure to provide reasonable nursing care or ancillary services, such as supervision and protection from falls, adequate nutrition and hydration, adequate skin assessment and protection, or a safe and secure environment free of physical or sexual abuse.

Practice Pointer
Colorado statutes provide for expedited trial settings in cases where the plaintiff is not expected to live beyond one year from the time the case is filed. C.R.S. § 13-1-129. The 119-day statutory trial setting is mandatory if clear and convincing medical evidence raises substantial doubt that the plaintiff will live more than one year; it is discretionary if the plaintiff is at least 70 years old and has a meritorious claim.

Nursing homes are extensively regulated by both the state and federal government, and many long-term care experts believe that these regulations inform the standard of care in nursing homes.²

The federal regulations governing the operation of nursing homes are found at 42 C.F.R. § 483. These regulations contain a description of residents' rights, 42 C.F.R. § 483.10; resident assessment requirements, 42 C.F.R. § 483.20; and requirements concerning quality of care, 42 C.F.R. § 483.25, staffing and nursing services, 42 C.F.R. § 483.30, physical environment, 42 C.F.R. § 483.70, and administration, 42 C.F.R. § 483.75.

The Colorado Department of Public Health and Environment (CDPHE) has enacted complimentary regulations governing the operation of nursing homes. 6 C.C.R. 1011-1, ch. V. These regulations include requirements concerning the ownership and "governing body" of the nursing home, the structure of the nursing home, facility quality assurance, administration, staffing, resident care, resident assessment, care planning, services, activities, and residents' rights.

More general statutes concerning the operation of nursing homes are found in the enabling act, 42 U.S.C. §§ 1396r(b)(4) and 1395i-3(b)(4), both ofwhich were part ofthe federal Nursing Home Reform Act of 1987.

Any attorney handling nursing home claims should be generally familiar with these regulations and intimately familiar with the specific regulations at issue in the claim.

§ 60.3.2—Negligence Resulting in Wrongful Death

It is often the case that by the time a nursing home injury results in a claim or litigation, the nursing home resident is deceased.

A claim for wrongful death requires proof that the nursing home or its employees were negligent in regard to the care or services provided to the decedent; that the negligence was a cause of the decedent's death; and that the plaintiff has standing to sue for the decedent's wrongful death. See Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981).

In Colorado, lineal heirs at law have standing to bring a claim for negligence resulting in wrongful death pursuant to the Colorado Wrongful Death Act. C.R.S. § 13-21-201(1). The Act has been interpreted as limiting standing to the children, spouse, or parents of the decedent. In the first year after death, the spouse has the exclusive right to bring the claim. The children may bring the claim within the first year if the spouse elects to share the claim or not to sue. After the first year, both the surviving spouse and the children have standing. If there is no spouse and there are no children (i.e., in the case of a minor), then, and only then, do the parents of the decedent have standing to bring a claim. Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo. 1997); Ablin v. O'Brien Plastering Co., 885 P.2d 289 (Colo. App. 1994). Siblings of a decedent have been held to lack standing to bring a wrongful death claim. See Ablin, 885 P.2d 289.

The current Colorado jury instructions on wrongful death...