24 Jun Things Have Changed For Long-Term Care Facilities
After years of failed pressure and lobbying from the Plaintiffs’ bar, the Colorado legislature recently passed major amendments to the caps in Colorado governing long-term care facilities. Under the new caps regime, to take one example, for a 2026 wrongful death claim brought by a family to redress uncomplicated alleged nursing home negligence, the damages cap has been raised to $850,000 for emotional distress-type damages alone. This new cap will continue increasing annually and will reach $1,500,000 shortly, and then be increased for inflation. The new law also allows siblings to sue for wrongful death. They have been excluded from making such claims in Colorado for more than a century
Until recently, one of the hardest things to explain to our clients over the years has been these shockingly low Colorado damage caps for such claims. People come to us completely shocked at what they have been through, bearing witness to the egregious neglect and abuse that their loved ones, usually their parents, have experienced, often in front of their eyes. But we and other lawyers have had to explain to them that while we can help them fight back, they should not expect justice to come in the form of a settlement or verdict that would actually reflect the value of their loved ones and the neglect done to them because a deliberately understaffed facility didn’t have enough people to take care of their parents or grandparents or provide them the care they needed.
Until recently, caps for emotional distress claims, including grief and anger and even justifiable rage, were held to $300,000.00 by the Colorado legislature, as the legislature was captured in significant degree by lobbyists for the health care industry. At the same time, our high courts repeatedly approved such lowly caps against legal arguments that such caps trampled the fundamental constitutional right to jury trials. Even today, Colorado jurors are not allowed to be informed of such caps and how they will be automatically applied to reduce any judgments they render. Juries have long been angry and upset about the care and treatment of our loved ones.
Despite the low caps, for decades, we have been suing nursing homes and assisted living facilities for egregious and substandard care. Our firm is the one that sued the federal government into creating and enforcing national quality of care standards in nursing homes and helped with the passage of the Nursing Home Reform Act. We have also been one of the voices requiring all health care institutions to have mandatory professional liability insurance for all incidents of negligence, neglect, or abuse. We sued Colorado to ensure that this requirement is enforced.
Likewise, because of the low caps, many years back, we began asserting different kinds of claims, claims that could force the defendants to think much harder about and increase their capped exposures. We started suing under Colorado’s deceptive trade practices claims and under premises liability theories. Long before the theory was fully recognized, we also began asserting in egregious cases that “felonious killings” had occurred. John even wrote an article called “The Myth of Caps” after our biggest case, which forced the closure of a particularly awful facility called O’Hara, obtaining a 30-million-dollar judgment on behalf of multiple families and pursuing the insurance companies that refused to pay until they significantly settled. Colorado Courts are now embracing the right to bring such caps-busting claims in cases involving felonious killings resulting from a reckless disregard of a known serious risk for death or severe injury, and now it is even being applied to corporations, not just individual bad actors, in recent appellate decisions.
Until recently, when claims were asserted under the old regime of not valuing our loved ones, defense counsel and the insurance carriers who insure long-term care facilities routinely treated the caps as the ceiling, not the floor, and bargained for less. In their eyes, only a “perfect” claim could justify a full-cap damage award, and since no case is perfect, all claims were negotiated under the already very low $300,000 cap. At the same time, litigation costs remained high, often resulting in the lawyers handling such claims recommending settlements that were less than the caps because the time and effort and expense required to get to a jury was not worth it to the family and would eat up significant portions of any jury verdict achieved.
Another longstanding and significant barrier to justice in this area, and again something we have struggled to explain to potential clients, has been the lack of legal standing for siblings of those neglected and abused in a nursing home or assisted living facility. That too has now changed, and where there are no parents or children, surviving brothers and sisters can now sue for wrongful death.
We continue to handle these important cases on a contingent basis and have extensive experience doing so.
Images used under creative commons license – commercial use (6/23/2026). Photo by Dominik Lange on Unsplash