Naomi Pressey, by and through her conservator, Jennifer Pressey, Plaintiff-Appellee,
Children's Hospital Colorado, Defendant-Appellant.
County District Court No. 13CV72 Honorable Kurt A. Horton,
Leventhal Puga P.C., James E. Puga, Benjamin I. Sachs, David
P. Mason, Denver, Colorado, for Plaintiff-Appellee
& Evans LLC, Alan Epstein, Denver, Colorado; Martin
Conklin P.C., John Martin, Carolyn Sprinthall Knaut, Denver,
Colorado, for Defendant-Appellant
1 In this medical malpractice action, we are asked to answer
two novel questions of law. First, in a post-verdict
proceeding to exceed the $1, 000, 000 cap on damages under
the Health Care Availability Act (HCAA), sections 13-64-101
to -503, C.R.S. 2016, can the trial court consider collateral
sources that fall under the contract exception to the
collateral source statute, section 13-21-111.6, C.R.S. 2016?
And second, can a parent relinquish his or her right to
pre-majority medical expenses incurred on behalf of a minor
after the statute of limitations has extinguished the
parent's claim so that the minor may recover those
expenses? For the reasons discussed below, we conclude trial
courts may not consider benefits included in the contract
exception to the collateral source statute in determining
whether to exceed the HCAA cap on damages. We further
conclude that a minor cannot recover for pre-majority
expenses incurred on his or her behalf by a parent after the
statute of limitations extinguishes that claim. We therefore
affirm in part, reverse in part, and remand with directions.
2 Four days after birth, plaintiff, Naomi Pressey (Naomi),
suffered irreversible brain damage caused by a lack of blood
and oxygen to her brain after experiencing cardiopulmonary
arrest. Naomi, by and through her conservator, Jennifer
Pressey, sued defendant, Children's Hospital Colorado
(the Hospital), for the negligence of its nurses in
administering medication to her prior to cardiopulmonary
3 The case was tried to a jury, which found the Hospital
negligent and awarded Naomi $17, 839, 784.60. The damages
award included past medical expenses, past noneconomic
losses, future medical expenses, future lost earnings, and
future noneconomic losses.
4 After trial, the court reduced Naomi's damages to $1,
000, 000 based on the legislative directive in section
13-64-302(1)(b), C.R.S. 2016. That section reads in pertinent
The total amount recoverable for all damages for a course of
care for all defendants in any civil action for damages in
tort brought against a health care professional . . . whether
past damages, future damages, or a combination of both, shall
not exceed one million dollars, present value per patient,
including any claim for derivative noneconomic loss or
injury, of which no more than two hundred fifty thousand
dollars, present value per patient . . . shall be
attributable to direct or derivative noneconomic loss or
injury; except that, if, upon good cause shown, the court
determines that the present value of past and future economic
damages would exceed such limitation and that the application
of such limitation would be unfair, the court may award in
excess of the limitation the present value of additional past
and future economic damages only.
5 Naomi filed a motion to exceed the cap for good cause. In a
lengthy written opinion, the court determined that good cause
had been shown and, after reducing the amount of noneconomic
losses and future medical expenses awarded to Naomi, entered
judgment in her favor for $14, 341, 538.60.
6 The Hospital claims several post-verdict errors by the
trial court. First, the Hospital argues that the court erred
in excluding evidence of Medicaid benefits and private
insurance available to Naomi in the post-verdict proceeding
to exceed the damages cap. The Hospital contends that if the
court had considered that evidence, Naomi would not have
established good cause to exceed the cap. Second, the
Hospital asserts the court erred in denying its motion for
judgment notwithstanding the verdict on Naomi's
pre-majority medical expenses because her parents incurred
the liability to pay those expenses and the statute of
limitations on her parents' claims expired prior to the
filing of this suit.
HCAA Damages Cap and the Collateral Source Statute
7 The Hospital argues that the legislative purpose of the
HCAA damages cap cannot be fulfilled if a trial court is
precluded from considering the actual losses of a plaintiff
based on the contract exception to the collateral source
statute. Because the cap imposed by section 13-64-302 can be
harmonized with the collateral source exception contained in
section 13-21-111.6, we reject this argument. Sound public
policy supports both the cap and the contract exception to
the collateral source statute.
Standard of Review
8 We review questions of statutory interpretation de novo.
Pulte Home Corp. v. Countryside Cmty. Ass'n,
2016 CO 64, ¶ 24. "In interpreting a statute, we
look to 'the entire statutory scheme to give consistent,
harmonious, and sensible effect to all parts' and apply
'words and phrases according to their plain and ordinary
meaning.'" Id. (quoting Denver Post
Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011)).
HCAA Damages Cap and Good Cause
9 The General Assembly enacted the HCAA "to assure the
continued availability of adequate health care services to
the people of this state." § 13-64-102(1), C.R.S.
2016. To that end, the General Assembly "clearly and
unequivocally" reaffirmed "the limitations of
liability set forth in section 13-64-302." §
13-64-102(2)(a). "[T]he clear purpose of the damages cap
is to limit damages." Wallbank v. Rothenberg,
140 P.3d 177, 181 (Colo.App. 2006).
10 The damages cap contained in the HCAA is constitutional
and does not usurp a trial court's right to review a jury
award. Garhart v. Columbia/HealthOne, L.L.C., 95
P.3d 571, 581-83 (Colo. 2004). This is because a trial court
may uncap damages if it finds "good cause" and
determines that application of the cap would be
"unfair." § 13-64-302(1)(b). "In making
findings as to 'good cause' and 'unfairness'
(which essentially are different ways of saying the same
thing), trial courts must consider the 'totality of
circumstances.'" Vitetta v. Corrigan, 240
P.3d 322, 329 (Colo.App. 2009).
[T]he statute does not specify factors that a trial court
must consider when determining whether a movant has shown
good cause or unfairness. Therefore, a court may exercise its
discretion to consider factors it deems relevant when
determining whether a movant qualifies for the . . .
exception to the cap. The trial court may not make that
determination in a vacuum, but must necessarily consider the
circumstances in each case.
Wallbank, 140 P.3d at 180-81.
Common Law and Post-Verdict Statutory Collateral Source Rule;