Want to take a doctor to small claims court, not for medical malpractice, but for something akin to false imprisonment.

Asked about 1 year ago - Denver, CO

Details are grim. I was pressured into an amniocentesis in my 5th month of pregnancy by this dr. At the last minute I chickened out and asked to leave, but dr and his asst used persuasive coercion to keep me there. The following day we lost the child. Autopsy & 2 followup drs confirm blotched amniocentesis was cause of death. Our Colorado legislature has enacted laws to protect HMOs, drs and ins. companies. As a result, patients have no legal recourse. No lawyer's interested in my case, due to the caps on recoverable damages for wrongful death of an infant in CO. So instead of letting the dr off scot-free can I at least try to recover a few thousand in direct medical costs due to this tragedy in small claims court? Not using expert medical testimony, but based on office conduct?

Attorney answers (5)

  1. Chris G. Hoffman

    Contributor Level 7

    6

    Lawyers agree

    Answered . I think that you would be taking a risk that your case would ultimately be categorized as a medical malpractice claim which requires that you provide a certificate that you have had an expert review the case and the expert has determined that there is a valid claim. The other side will likely argue that they kept you for medical reasons. If your case was classified as a medical malpractice claim and dismissed you could end up paying the other side's costs. I'm speculating a bit here but I would certainly recommend you tread very cautiously. On a practical level, I think it is going to be very difficult to get anywhere with what you describe given that you weren't physically detained. The real case should be the botched amnio but this is what tort reform has done to the system.

  2. Stephen Clark Harkess

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . You can always file - you are able to sue anyone for anything at any time. However, you cannot always win.

    "Persuasive coercion" doesn't sound like an element of false imprisonment. Were you actually stopped from leaving via unlawful means? If not, you don't really have a false imprisonment claim. Further, the death of your child appears to be related to the medical procedure, not the fact that you didn't leave the office, and that puts you squarely back in the realm of medical malpractice. You will lose a medical malpractice case unless you have the followup doctors come to testify as to how the Doctor's treatment fell below the standard of care in the medical community.

    Medical malpractice claims are difficult and expensive to pursue and there is no real way around that. Without expert testimony, a court cannot evaluate a doctor's treatment decisions and conduct.

    Have you filed a complaint with the state medical board? That doesn't cost anything and may result in an investigation into the operation.

    You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney... more
  3. Elizabeth Taylor Herd

    Pro

    Contributor Level 19

    6

    Lawyers agree

    Answered . I am not licensed in CO but think that this would be extremely difficult to do. It is a shame that the legislature in so many states has set up road blocks to meritorious cases where life is lost. God bless you.

  4. Tanya Marie Bachand

    Contributor Level 15

    5

    Lawyers agree

    Answered . I'm so sorry to hear this. If Colorado is anything like Connecticut, the only way to get at a treating physician is through a medmal case when it comes to care or lack thereof. False imprisonment is not going to get you there.

    This is general advice and does not establish an attorney-client relationship.
  5. David Ian Schoen

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . Sorry to hear about your misfortune. You have learned the grim reality of tort reform. False imprisonment would probably not fly but malpractice still might. Keep looking for an attorney willing to help and if it helps file a complaint with the state licensing board.

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