Last week the Colorado Supreme Court held hearings on the proposed “Civil Access Pilot Project” which proposes new, streamlined procedures for two types of lawsuits: 1) medical malpractice actions, and 2) certain types of “business” litigation. If approved by the Supreme Court, the pilot program will apply to cases filed in five Front Range jurisdictions (Jefferson County, Denver, Adams County, Arapahoe County and Boulder County) for two years after the effective date. After that period, presumably a decision will be made whether to adopt the rules statewide. The new rules will affect physicians and other health care providers in medical malpractice and business lawsuits, health care and medical malpractice lawyers, and plaintiffs. The new procedures will not apply to Colorado state medical board cases.
Assuming the proposed rules are adopted in their current form, they represent a departure from the current civil rules. According to Law Week Colorado, the Colorado Medical Society is concerned that the new rules will make it more difficult to defend themselves in medical malpractice cases. This concern appears to be based on the new expert witness rules applicable to medical malpractice cases. For example, the new rules require that the parties produce expert reports simultaneously, rather than allowing a defense expert to respond to the plaintiff’s expert. The “simultaneous disclosure” provision is similar to the procedure used in medical board cases, and does present a significant issue for doctors defending their care. The new rules also will require that expert witnesses submit a complete, signed report, with all supporting material, and a host of other information typically requested in discovery.
Significantly, the new rules prohibit expert depositions, and limit expert witnesses to one per side per specialty. This provision is especially troublesome for cases involving multiple providers, as it may limit a party’s ability to choose their own experts. The proposed rules contemplate that physicians of the same specialty will share a single expert “unless the parties are able to demonstrate a lack of commonality.” Another interesting provision does not count treating providers towards the expert limit, as long as their opinions are limited to their own evaluation, diagnosis, care and treatment. A defendant physician will be permitted to testify on his or her own behalf, and also have an expert witness. It is possible that the new rules will be a positive change if enforced properly and minimize the time and expense of litigation. However, it may hamper a doctor’s defense in medical malpractice cases.
A copy of the proposed Civil Access Project Rules can be viewed here.