Colorado Pre-Suit Medical Malpractice Demand and Pre-Litigation Framework

COLORADO PRE-SUIT MEDICAL MALPRACTICE FRAMEWORK AND DEMAND PACKAGE

Table of Contents

1. Overview — Why Colorado Has No Pre-Suit NOI Requirement
2. Pre-Suit Decision Tree
3. Letter A — Records Preservation and Spoliation Notice
4. Letter B — HIPAA-Compliant Records Request and Authorization
5. Letter C — Settlement Demand Letter
6. Letter D — Colorado Candor Act Engagement (C.R.S. § 25-51-101 et seq.)
7. Letter E — Colorado Governmental Immunity Act Notice (C.R.S. § 24-10-109) — Public Entities Only
8. Letter F — Federal Tort Claim Notice (FTCA) — VA / Military / IHS Facilities Only
9. Statute of Limitations and Tolling Worksheet
10. Damage Cap and Settlement Valuation Worksheet
11. Pre-Litigation Checklist
12. Sources and References

1. Overview — Why Colorado Has No Pre-Suit NOI Requirement

Colorado is one of a minority of states that does not condition the filing of a medical malpractice action on a pre-suit notice of intent to sue. There is no analog to Texas's Chapter 74 notice, Florida's § 766.106 NOI, or Michigan's MCL § 600.2912b notice. The principal pre-filing requirements in Colorado are:

• The Certificate of Review under C.R.S. § 13-20-602, filed within 60 days after service of the Complaint, not before filing;
• The two-year statute of limitations under C.R.S. § 13-80-102.5(1), measured from the date of discovery (subject to the three-year statute of repose);
• For public-entity defendants only, the Colorado Governmental Immunity Act notice under C.R.S. § 24-10-109 — which must be served within 182 days of the date the claim accrues (failure is a complete bar);
• For federal facilities (VA, IHS, U.S. military), an administrative tort claim under the Federal Tort Claims Act (Form SF-95) must be filed within two years of accrual.

Although no NOI is required, sophisticated plaintiffs' counsel routinely send pre-suit demand and records-preservation correspondence to: (i) preserve evidence; (ii) obtain records efficiently under HIPAA; (iii) open a settlement channel; (iv) participate in the Colorado Candor Act process; and (v) document due diligence supporting the Certificate of Review.

2. Pre-Suit Decision Tree

3. Letter A — Records Preservation and Spoliation Notice

[FIRM LETTERHEAD]

[DATE]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO [RISK_MANAGEMENT_EMAIL]

[FACILITY/PROVIDER NAME]
Attn: Risk Management Department / Legal Department
[ADDRESS]
[CITY], CO [ZIP]

Re: Records Preservation and Litigation Hold Notice
Patient: [PATIENT NAME], DOB [__/__/____]
Dates of Care: [__/__/____] to [__/__/____]
MRN: [_____]

Dear Risk Manager / Legal Counsel:

This firm represents [PATIENT NAME / PERSONAL REPRESENTATIVE OF THE ESTATE OF [DECEDENT]] in connection with care rendered at your facility from approximately [DATE] through [DATE]. We are investigating potential claims arising from that care and are providing this written notice so that you may take appropriate steps to preserve all relevant evidence.

You are hereby instructed to preserve and not alter, modify, delete, or destroy the following materials, in any format (paper, electronic, audio, video, or otherwise):

1. The complete medical record, including all paper, scanned, and electronic entries; addenda; corrections; metadata; and audit trails;
2. All imaging studies in DICOM format, including primary and reconstructed series, and all radiology reports and addenda;
3. All laboratory records, pathology specimens, and pathology reports;
4. All operative reports, anesthesia records, perfusion records, and intraoperative event logs;
5. All nursing notes, vital sign records, and medication administration records;
6. All telemetry, fetal monitoring strips, and waveform data;
7. All electronic health record (EHR) audit logs, access logs, and metadata showing entries, edits, deletions, log-ins, and time-stamps for any user who accessed the patient's chart;
8. All incident reports, root cause analyses, peer review materials (preserved subject to applicable privilege), morbidity and mortality conference notes, and quality improvement documents;
9. All communications (email, secure messaging, text, voicemail) referring to the patient;
10. All staff schedules, on-call schedules, and credentialing files for providers who treated the patient;
11. All policies, protocols, order sets, and clinical guidelines in effect on the dates of care;
12. All device logs and equipment maintenance records for any device used in the patient's care, including [DEVICE].

This obligation is continuing and applies to materials in your possession, custody, or control, and to materials in the possession of your agents, contractors, electronic-records vendors, and cloud providers. Spoliation of evidence may result in adverse-inference instructions, sanctions, and an independent tort claim under Colorado law.

A HIPAA-compliant authorization for the release of records, executed by the patient/personal representative, is enclosed. Please produce the records identified in Section 4 below within thirty (30) days, along with an itemized statement of any reasonable copying charges permitted under C.R.S. § 25-1-802.

Sincerely,

[ATTORNEY NAME], Esq.
[FIRM]
[PHONE] | [EMAIL]

Enclosures: HIPAA Authorization; Records Request

4. Letter B — HIPAA-Compliant Records Request and Authorization

B.1 Patient Authorization for Release of Protected Health Information

AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
(45 C.F.R. § 164.508 — HIPAA-Compliant)

____________________________ Date: [__/__/____]
[PATIENT / PERSONAL REPRESENTATIVE SIGNATURE]

If signed by personal representative, basis of authority: ☐ Personal Representative of Estate (Letters attached) ☐ Power of Attorney for Health Care ☐ Parent of Minor ☐ Court-Appointed Guardian/Conservator

B.2 Cover Letter to Records Custodian

[DATE]

[FACILITY] — Health Information Management / Release of Information
[ADDRESS]

Re: Request for Complete Medical Records — [PATIENT NAME], MRN [____]

Pursuant to the enclosed HIPAA authorization, please produce a complete copy of the patient's medical record for all dates of service. Please include:

• All progress notes, consultation notes, H&P, discharge summaries;
• All operative reports, anesthesia records, intraoperative monitoring;
• All nursing notes, MAR, vitals, I/O records;
• All imaging on DICOM-readable media (CD/DVD or secure FTP);
• All laboratory and pathology reports;
• The full EHR audit log/access trail (45 C.F.R. § 164.528);
• All billing records, itemized statements, and CMS-1500/UB-04 forms.

Please provide the records within thirty (30) days as required by 45 C.F.R. § 164.524. Reasonable, cost-based fees pursuant to C.R.S. § 25-1-802 will be tendered upon receipt of an itemized invoice.

Sincerely,
[ATTORNEY NAME]

5. Letter C — Settlement Demand Letter

[FIRM LETTERHEAD]

[DATE]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
CONFIDENTIAL — FOR SETTLEMENT PURPOSES ONLY
INADMISSIBLE UNDER C.R.E. 408

[CARRIER / RISK MANAGER / DEFENSE COUNSEL]
[ADDRESS]

Re: Pre-Suit Settlement Demand
Claimant: [CLAIMANT NAME]
Insured / Provider: [PROVIDER]
Date of Loss: [__/__/____]

Dear [NAME]:

This firm represents [CLAIMANT NAME] in connection with injuries sustained as a result of the medical care rendered by [PROVIDER] on or about [DATE]. We have completed an investigation and expert review and now submit this pre-suit settlement demand pursuant to C.R.E. 408. This communication is for settlement purposes only and is not admissible at trial.

A. Summary of Claim

Between [DATE] and [DATE], [PROVIDER] [DESCRIBE NEGLIGENT ACTS]. As a direct and proximate result, [CLAIMANT] suffered [INJURIES]. The applicable standard of care, as confirmed by our retained expert(s) — qualified under C.R.S. § 13-64-401 — required [STANDARD]. [PROVIDER]'s deviation was [DESCRIBE].

B. Liability

We have obtained a written opinion from [SPECIALTY] expert(s) concluding, to a reasonable degree of medical probability, that [PROVIDER]'s breach was a proximate cause of [CLAIMANT]'s injury. Our investigation supports the certifications required by C.R.S. § 13-20-602.

C. Damages

D. Coverage and Cap Analysis

Under HB 24-1472, the 2026 noneconomic medical-malpractice cap is $530,000, and the 2026 wrongful-death medical-malpractice cap is $810,000, with annual increases through 2029 and biennial CPI adjustments thereafter. Economic damages are uncapped. Permanent physical impairment and disfigurement damages are recoverable independently. See Preston v. Dupont, 35 P.3d 433 (Colo. 2001).

E. Demand and Deadline

We hereby demand the sum of $[_____] in full and final settlement. This demand will remain open until [__/__/____]. If we do not receive a substantive response by that date, we will file a Complaint in [COUNTY] District Court without further notice.

F. Statements of Apology / Candor Act

Be advised that any statements of apology, sympathy, or fault made by [PROVIDER] are inadmissible under C.R.S. § 13-25-135. We remain open to a Colorado Candor Act process under C.R.S. § 25-51-101 et seq. if your client elects to initiate one within the statutory window.

Sincerely,

[ATTORNEY NAME]

Enclosures: Medical records summary; expert affidavit (if disclosed); economic-loss report; photographs

6. Letter D — Colorado Candor Act Engagement (C.R.S. § 25-51-101 et seq.)

[DATE]

VIA CERTIFIED MAIL AND EMAIL

[PROVIDER / FACILITY]
Attn: Candor Act Coordinator / Risk Management

Re: Patient [NAME] — Response to Candor Act Notice / Request for Open Discussion
Adverse Health Care Incident Date: [__/__/____]

Dear [NAME]:

This firm represents [PATIENT/REPRESENTATIVE]. We are in receipt of your written notice dated [__/__/____], inviting an "open discussion" pursuant to the Colorado Candor Act, C.R.S. § 25-51-101 et seq.

☐ Election to Participate. Our client elects to participate in the open-discussion process. We acknowledge the following:

• The communications during the open-discussion process are confidential and inadmissible under C.R.S. § 25-51-104, except as expressly permitted;
• Statutes of limitations and repose are tolled during the open-discussion period under C.R.S. § 25-51-106;
• Either party may withdraw from the process upon written notice;
• Our client retains all legal rights and may pursue litigation if the open-discussion process does not resolve the claim.

We propose the following:

☐ Election Not to Participate. Our client respectfully declines to participate in the Candor Act process and reserves all rights to pursue litigation. Please direct further communications to the undersigned.

Sincerely,

[ATTORNEY NAME]

7. Letter E — Colorado Governmental Immunity Act Notice (C.R.S. § 24-10-109) — Public Entities Only

[DATE]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

TO:

• The Attorney General of Colorado, Ralph L. Carr Judicial Center, 1300 Broadway, 10th Floor, Denver, CO 80203 (for state-entity claims);
• [GOVERNING BODY] (for the public entity);
• [FACILITY] Risk Management;
• [INDIVIDUAL PUBLIC EMPLOYEE], at his/her place of employment.

Re: Notice of Claim Pursuant to C.R.S. § 24-10-109
Claimant: [NAME], [ADDRESS]

Pursuant to C.R.S. § 24-10-109(2), Claimant hereby provides written notice of a claim against the above-identified public entity and public employee(s) and states the following:

This notice is served within one hundred eighty-two (182) days of the date the injury was discovered, on or about [__/__/____]. Service by certified mail is effective upon mailing per C.R.S. § 24-10-109(3).

Claimant reserves the right to amend this notice and to file suit upon expiration of the statutory waiting period or upon written denial of the claim, whichever occurs first.

Sincerely,

[ATTORNEY NAME]

8. Letter F — Federal Tort Claim Notice (FTCA) — VA / Military / IHS Facilities Only

F.1 Form SF-95 Submission

F.2 Cover Letter

[DATE]

[Agency Office of General Counsel]

Re: Federal Tort Claim — [CLAIMANT NAME]

Enclosed please find Standard Form 95, accompanied by [LIST OF EXHIBITS], asserting a claim for damages arising from medical care rendered at [FACILITY] on [DATE]. The sum certain claimed is $[_____].

Please confirm receipt and provide the agency's position within six months.

Sincerely,

[ATTORNEY NAME]

9. Statute of Limitations and Tolling Worksheet

10. Damage Cap and Settlement Valuation Worksheet

10.1 HB 24-1472 Schedule (verify)

10.2 Valuation Workspace

10.3 Liens and Subrogation Checklist

☐ Medicare conditional payments (CMS BCRC notice)
☐ Medicaid (HCPF) lien — C.R.S. § 25.5-4-301
☐ ERISA health-plan subrogation
☐ TRICARE / VA right of recovery
☐ Hospital lien — C.R.S. § 38-27-101
☐ Workers' comp carrier subrogation (if applicable)
☐ Long-term disability carrier subrogation

11. Pre-Litigation Checklist

A. Intake and Case Workup (Days 1–30)

☐ Engagement letter and contingency fee agreement signed
☐ HIPAA authorization signed by patient/personal representative
☐ Records preservation letter (Letter A) sent to facility/provider
☐ Records request (Letter B) sent
☐ Defendant identification — confirm public/private status
☐ Statute of limitations diary entries set (SOL, repose, CGIA, FTCA)
☐ Conflicts check completed
☐ Photographs of injury / surgical site obtained

B. Investigation (Days 30–120)

☐ Complete records received and Bates-stamped
☐ Records timeline / chart summary drafted
☐ Expert(s) retained — must qualify under C.R.S. § 13-64-401
☐ Expert review completed
☐ Causation analysis documented in memo
☐ Damages workup (economist / life-care planner)
☐ Lien notices sent (Medicare, Medicaid, ERISA)

C. Pre-Suit Resolution Attempts (Days 120–180)

☐ Settlement demand letter (Letter C) sent
☐ Candor Act response prepared (Letter D), if applicable
☐ Mediation considered
☐ CGIA notice (Letter E) served (if public entity, within 182 days)
☐ FTCA SF-95 filed (if federal)

D. Filing Decision (Approaching SOL)

☐ Draft Complaint reviewed
☐ Certificate of Review materials assembled (do not file with Complaint — file within 60 days of service)
☐ Filing fee and jury fee verified
☐ Service plan for each Defendant
☐ Calendar Certificate of Review deadline upon service

12. Sources and References

• C.R.S. § 13-64-101 et seq. (Health Care Availability Act) — https://colorado.public.law/statutes/crs_13-64-302
• HB 24-1472 — https://leg.colorado.gov/bills/hb24-1472
• C.R.S. § 13-20-602 (Certificate of Review)
• C.R.S. § 13-64-401 (Expert qualifications)
• C.R.S. § 13-80-102.5 (SOL/repose)
• C.R.S. § 13-25-135 (Apology statute) — https://codes.findlaw.com/co/title-13-courts-and-court-procedure/co-rev-st-sect-13-25-135.html
• C.R.S. § 25-51-101 et seq. (Colorado Candor Act) — https://www.copic.com/candor-resources/colorado-candor-act-resources/
• C.R.S. § 24-10-101 et seq. (Colorado Governmental Immunity Act)
• C.R.S. § 24-10-109 (CGIA notice — 182 days)
• 28 U.S.C. §§ 1346(b), 2401(b), 2671–2680 (FTCA)
• 45 C.F.R. § 164.508 (HIPAA authorization elements)
• 45 C.F.R. § 164.524 (Right of access — 30 days)
• Garhart v. Columbia/Healthone, LLC, 95 P.3d 571 (Colo. 2004)
• Preston v. Dupont, 35 P.3d 433 (Colo. 2001)
• Martinez v. Badis, 842 P.2d 245 (Colo. 1992)
• C.R.E. 408 (settlement communications)
• Standard Form 95 (FTCA) — https://www.gsa.gov/forms-library/claim-damage-injury-or-death