The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 2, 2023
2023COA103
No. 22CA1246, Rudnicki v. Bianco — Professional Liability — Medical Malpractice — Pre-Majority Medical Expenses; Remedies — Interest on Damages — Prejudgment Interest; Health and Welfare — Health Care Availability Act — Limitation of Liability
In this medical malpractice action, a division of the court of
appeals rejects the defendant doctor’s contention that the district
court should have computed prefiling, prejudgment interest on the
jury’s award of pre-majority medical expenses to the minor plaintiff
from the date the Colorado Supreme Court decided Rudnicki v.
Bianco, 2021 CO 80, which abolished the common law rule
precluding minors from recovering that category of damages. The
division concludes that Rudnicki did not alter the date from which
prefiling, prejudgment interest is calculated under section 13-21-
101(1), C.R.S. 2023. Thus, the division concludes that the plaintiff was entitled to prefiling, prejudgment interest on his pre-majority
medical expenses from the date his cause of action accrued.
The division also rejects the doctor’s contention that the
district court erred by awarding prefiling, prejudgment interest in
an amount that would make the total award exceed the $1 million
damages limitation under the Health Care Availability Act (HCAA),
section 13-64-302(1)(b), C.R.S. 2023. Generally following the
rationale of Scholle v. Ehrichs, 2022 COA 87M, ¶ 107 (cert. granted
Apr. 10, 2023), the division concludes that prefiling, prejudgment
interest on past and future economic damages may exceed the $1
million cap in the HCAA, provided the other statutory requirements
for exceeding the cap are met. COLORADO COURT OF APPEALS 2023COA103
Court of Appeals No. 22CA1246 El Paso County District Court No. 14CV34013 Honorable David A. Gilbert, Judge
Alexander Rudnicki; and Francis Rudnicki as parents, guardians, and next friends; and Pamela Rudnicki, as parents, guardians, and next friends,
Plaintiffs-Appellees,
v.
Peter Bianco, D.O.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE BROWN Tow and Schock, JJ., concur
Announced November 2, 2023
Wahlberg, Woodruff, Nimmo & Sloane LLP, David S. Woodruff, Megan K. Matthews, Denver, Colorado, for Plaintiffs-Appellees
Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Peter Bianco, D.O., appeals the district court’s
entry of judgment on the jury’s award of damages for pre-majority
medical expenses to plaintiff, Alexander Rudnicki.1 Dr. Bianco
contends that the court erred by awarding prefiling, prejudgment
interest on those damages (1) from the date Alexander was born
(the date of injury) rather than the date the Colorado Supreme
Court determined he was entitled to recover such expenses in
Rudnicki v. Bianco, 2021 CO 80; and (2) resulting in a total award
in excess of the $1 million damages limitation under the Health
Care Availability Act (HCAA), section 13-64-302(1)(b), C.R.S. 2023.
¶2 Resolving Dr. Bianco’s first contention requires us to
determine the impact of Rudnicki, if any, on the date from which
prefiling, prejudgment interest on an award of pre-majority medical
expenses should be calculated. Dr. Bianco contends that because
Alexander was not entitled to recover his pre-majority medical
expenses as a measure of damages until Rudnicki abolished the
1 We refer to Alexander by his first name because that is how the
supreme court referred to him in Rudnicki v. Bianco, 2021 CO 80. We intend no disrespect by doing so. Alexander’s parents, Francis and Pamela Rudnicki were originally individual plaintiffs as well but as discussed below, infra Part I, their individual claims were dismissed.
1 common law rule precluding such recovery, interest should accrue
from the date of the supreme court’s ruling rather than from the
date of Alexander’s birth. Based on the plain language of sections
13-21-101(1) and 13-80-108(1), C.R.S. 2023, we conclude that
Alexander is entitled to collect prefiling, prejudgment interest on his
pre-majority medical expenses from the date his cause of action
accrued, which was the date of his birth.
¶3 Resolving Dr. Bianco’s second contention requires that we
consider whether prefiling, prejudgment interest on economic
damages may be awarded in an amount that would make the total
award exceed the $1 million damages limitation under the HCAA.
We generally agree with the rationale of Scholle v. Ehrichs, 2022
COA 87M, ¶ 107 (cert. granted on other grounds Apr. 10, 2023),
which held that “prefiling, prejudgment interest is part of ‘damages’
capped under the HCAA, subject to being uncapped upon a
showing of good cause and unfairness.” See § 13-64-302(1)(b).
Prefiling, prejudgment interest on Alexander’s pre-majority medical
expenses is a part of his past and future economic damages. And
the district court found the requisite good cause and unfairness to
award past and future economic damages exceeding the HCAA
2 damages limitation. Thus, we conclude that Alexander is entitled to
prefiling, prejudgment interest on his pre-majority medical
expenses from the date of his birth, without limitation.
I. Background and Procedural History
¶4 On October 5, 2005, Alexander was severely injured when Dr.
Bianco negligently performed an operative vaginal delivery using a
vacuum extractor to assist in his birth. Alexander suffered scalp
abrasions and bruising on his skull and required immediate,
intensive medical treatment. As a result of his injuries, Alexander
has required and will require ongoing physical, occupational, and
speech therapy. Alexander has intellectual disabilities and is
enrolled in special education. He is unlikely to be able to live
independently in the future. See Rudnicki, ¶ 4.
¶5 In 2014, Francis and Pamela Rudnicki, in their individual
capacities and as parents, guardians, and next friends of Alexander,
sued Dr. Bianco for medical malpractice. The parents’ individual
claims against Dr. Bianco were dismissed as time barred, and the
case proceeded to a jury trial with Alexander as the sole plaintiff.
See id. at ¶ 5; see also § 13-80-102.5(1), (3)(d)(II), C.R.S. 2023.
3 ¶6 After a two-week trial, a jury found that Dr. Bianco had acted
negligently, causing Alexander injuries, and awarded Alexander a
total of $4 million in damages, including more than $3.6 million in
past and future economic damages. As relevant to this appeal,
those economic damages included $391,000 for past medical
expenses Alexander had already incurred and future medical
expenses he would probably incur from the date of judgment until
he reached age eighteen (pre-majority medical expenses).2 See
Rudnicki, ¶ 5.
¶7 Arguing that the common law only allowed Alexander’s
parents, not Alexander himself, to recover pre-majority medical
expenses, see Pressey v. Child.’s Hosp. Colo., 2017 COA 28, ¶ 26,
and that the parents’ claims were time barred, Dr. Bianco moved
the district court to reduce Alexander’s damages award by the
2 The jury awarded Alexander $325,000 for past medical expenses
and $110,000 for future medical expenses he would probably incur until he reaches age twenty-two. Dr. Bianco did not challenge forty percent, or $44,000, of the $110,000 award, which is the proportion of future medical expenses Alexander would probably incur after age eighteen (his current age) but before he turns twenty-two. Thus, this appeal relates only to prejudgment interest on pre- majority medical expenses Alexander would probably incur before he turned eighteen.
4 amount the jury attributed to his pre-majority medical expenses.
Reasoning that it was bound by Pressey, the court reduced the
damages award by $391,000.
¶8 Dr. Bianco also moved the court to reduce Alexander’s total
award to $1 million, citing the damages limitation in section 13-64-
302(1)(b) of the HCAA. But the court found that there was good
cause to exceed the damages cap. It reasoned that applying the cap
in this case would be “manifestly unfair” to Alexander given the
substantial evidence presented at trial regarding his life-long need
for “constant supervision” and “considerable assistance with
performing the basic tasks of living that most of us take for
granted,” and his inability to contribute in any meaningful way to
the costs of such care. The court concluded that the jury’s findings
were the proper measure of the fair, reasonable, and necessary
damages Alexander incurred and declined to further reduce the
award.
¶9 Finally, Dr. Bianco moved the court to apply the HCAA
damages cap to limit Alexander’s recovery of prejudgment interest
for the period beginning on the date the action accrued and ending
on the date the complaint was filed (prefiling, prejudgment interest),
5 citing section 13-64-302(2). Because Alexander’s damages award
exceeded the $1 million cap, Dr. Bianco argued that no prefiling,
prejudgment interest should be awarded.
¶ 10 The court did not initially resolve whether prefiling,
prejudgment interest was subject to the $1 million cap and instead
ordered Alexander’s counsel to file a proposed order “to include
prejudgment and post-judgment interest” based on the modified
award of damages. Alexander’s counsel submitted two proposed
orders, one that capped prefiling, prejudgment interest and one that
did not. Ultimately, the court entered judgment in favor of
Alexander in the amount of $4,633,174.59, consisting of
$3,554,000 in damages plus $1,079,174.59 in prejudgment interest
calculated from the date the suit was filed to the date of judgment
(post-filing, prejudgment interest). The court explained that its
prior “reference to prejudgment interest was meant to include
interest from the date of the filing of the complaint and not pre-
filing interest.”
¶ 11 Alexander appealed the district court’s decision to reduce the
judgment by the amount of pre-majority medical expenses. See
Rudnicki v. Bianco, (Colo. App. No. 18CA0215, June 6, 2019) (not
6 published pursuant to C.A.R. 35e)). A division of this court
affirmed, concluding that Alexander was not entitled to recover pre-
majority medical expenses under the then-existing common law
rule. See id.
¶ 12 Alexander then petitioned for certiorari review by the Colorado
Supreme Court. See Rudnicki, ¶ 10. The supreme court granted
certiorari, in relevant part, to decide whether to adhere to the
common law rule under which only a minor plaintiff’s parents may
recover tort damages for medical expenses incurred by their
unemancipated minor child. See id. at ¶ 1 n.1. The supreme court
reasoned that the traditional rationales for the common law rule no
longer apply and that the realities of the modern health care
economy compelled it to abandon the common law rule and to
conclude that either the unemancipated minor child or their
parents may recover the child’s pre-majority medical expenses,
although double recovery is not permitted. See id. at ¶ 2. The
supreme court reversed the decision of the division, overruled
Pressey, and remanded for further proceedings. Id. at ¶¶ 44, 49.
¶ 13 On remand, the parties agreed that, following Rudnicki,
judgment should be entered in Alexander’s favor for $391,000 in
7 damages for pre-majority medical expenses. But they disputed
when prejudgment interest began to accrue and how much
prejudgment interest could be awarded.
¶ 14 Alexander requested $319,120.27 in prefiling, prejudgment
interest, calculated from the date the action accrued — October 5,
2005 — until the date the complaint was filed, and another
$647,233.30 in post-filing, prejudgment interest, calculated from
the date the complaint was filed — October 31, 2014 — until the
date the judgment entered. Dr. Bianco argued that Alexander was
only entitled to prejudgment interest from the date the supreme
court issued Rudnicki — December 13, 2021 — for a total of
$15,876.89. Alternatively, Dr. Bianco argued that Alexander was
not entitled to recover any prefiling, prejudgment interest because
he had already been awarded “the maximum total amount
allowable” under the HCAA damages limitation. But Dr. Bianco
agreed that Alexander could recover post-filing, prejudgment
interest from the date the complaint was filed until the date the
judgment was entered, for a total of $360,636.28.
¶ 15 The district court adopted Alexander’s proposed form of
judgment, which included prefiling, prejudgment interest calculated
8 from the date Alexander was born, as well as post-filing,
prejudgment interest calculated from the date the complaint was
filed. The court further ordered that its prior decision that
Alexander’s damages could exceed the $1 million cap under the
HCAA “still applie[d],” so the cap did not limit the amount that
could be recovered as prejudgment interest.
II. Analysis
¶ 16 The only issue remaining for us to decide on appeal is whether
the district court erred by including in its final judgment prefiling,
prejudgment interest on Alexander’s pre-majority medical expenses,
calculated from his date of birth. We first determine the date from
which the prefiling, prejudgment interest should be calculated
under section 13-21-101(1). We then determine whether such
interest should be limited by section 13-64-302(1)(b).
A. Standard of Review
¶ 17 Dr. Bianco’s contentions require that we interpret and apply
several Colorado statutes, which we do de novo. See McCulley v.
People, 2020 CO 40, ¶ 10. In construing a statute, we aim to
effectuate the legislature’s intent by giving the language its plain
and ordinary meaning. See id. “We must interpret the statute as a
9 whole and in the context of the entire statutory scheme, giving
consistent, harmonious, and sensible effect to all its parts.” Id.
¶ 18 If the plain language is clear and unambiguous, we apply the
statute as written and look no further. See Nieto v. Clark’s Mkt.,
Inc., 2021 CO 48, ¶ 12. However, if a statute is ambiguous — “that
is, reasonably susceptible [of] more than one interpretation” — we
turn to other interpretive aids to discern the legislature’s intent. Id.
at ¶ 13. These aids include legislative history, the end to be
achieved by the statute, and the consequences of a given
construction. § 2-4-203, C.R.S. 2023; see Morris v. Goodwin, 185
P.3d 777, 779 (Colo. 2008).
B. Prefiling, Prejudgment Interest May Be Recovered from the Date the Cause of Action Accrued
¶ 19 Dr. Bianco contends that the district court erred by awarding
prefiling, prejudgment interest from Alexander’s date of birth
because he was not legally entitled to those damages until the
supreme court’s decision in Rudnicki. Based on the plain language
of the governing statutes, we disagree.
¶ 20 Prejudgment interest on damages awarded in a personal injury
action is specifically authorized by section 13-21-101(1). Seaward
10 Constr. Co. v. Bradley, 817 P.2d 971, 973 (Colo. 1991). Under that
statute, a plaintiff may recover prejudgment interest on damages
“from the date the action accrued” until the day before the
complaint was filed — prefiling, prejudgment interest — and from
the date the complaint was filed to the date judgment entered —
post-filing, prejudgment interest. § 13-21-101(1); Ochoa v. Vered,
212 P.3d 963, 970 (Colo. App. 2009).
¶ 21 The legislature has defined when a personal injury action
accrues in section 13-80-108(1): “[A] cause of action for injury to [a]
person . . . shall be considered to accrue on the date both the injury
and its cause are known or should have been known by the exercise
of reasonable diligence.” See Jones v. Cox, 828 P.2d 218, 223 (Colo.
1992) (“We hold that a cause of action accrues on the date that both
the physical injury and its cause were known or should have been
known by the exercise of reasonable diligence.”); see also § 13-80-
102.5(1).
¶ 22 Based on the plain language of the applicable statutes, which
are clear and unambiguous on this point, Alexander may recover
prejudgment interest on his damages from the date his injury and
its cause were known or should have been known by the exercise of
11 reasonable diligence. See §§ 13-21-101(1), 13-80-102.5(1), 13-80-
108(1). It is undisputed that Alexander’s injury and its cause were
known on the date of his birth, October 5, 2005. Alexander’s action
against Dr. Bianco accrued on that date, and he is entitled to
prefiling, prejudgment interest from that date to the day before his
complaint was filed. See § 13-21-101(1); Ochoa, 212 P.3d at 970.
¶ 23 Despite the statutes’ plain language, Dr. Bianco contends that
“Colorado law has not addressed at what point prejudgment
interest begins to accrue when the law changes to allow a plaintiff
to recover a new category of damages after the plaintiff’s cause of
action accrues.” Dr. Bianco essentially asks us to hold that a cause
of action accrues for purposes of computing interest under section
13-21-101(1) when the plaintiff becomes legally entitled to a
particular category of damages. Because Alexander became legally
entitled to recover pre-majority medical expenses when the supreme
court decided Rudnicki, Dr. Bianco argues that the date of the
decision should be the date from which interest on that category of
damages is calculated. He argues that section 13-21-101 is “silent”
as to when prejudgment interest may be recovered under these
circumstances and encourages us to look to the legislature’s intent
12 in authorizing prejudgment interest to determine the statute’s
meaning. For four reasons, we are not persuaded.
¶ 24 First, the date a personal injury action accrues does not
depend on when the plaintiff incurs a specific category or amount of
damages. The word “injury” in section 13-80-108(1) means
“physical injury,” not “injury upon which a claimant can sustain a
cause of action.” Jones, 828 P.2d at 223; see also Brodeur v. Am.
Home Assurance Co., 169 P.3d 139, 147 n.8 (Colo. 2007) (“We note
that an injury is different from the damages that flow from the
injury.”). If the plaintiff is able to “ascertain whether she has
sustained any damage,” the “fact of injury” is known for purposes of
accrual. Dove v. Delgado, 808 P.2d 1270, 1273-74 (Colo. 1991).
“Pursuant to the language of section 13-80-108(1), damages do not
need to be known before accrual of a claim.” Brodeur, 169 P.3d at
147 n.8; see also Taylor v. Goldsmith, 870 P.2d 1264, 1266 (Colo.
App. 1994) (a plaintiff’s claim accrues “on the date the fact of injury
and its cause are known or should have been known”; the
“plaintiff’s uncertainty as to the full extent of the damages does not
prevent the filing of a timely complaint”).
13 ¶ 25 Second, although Rudnicki held that a minor child is entitled
to recover a new category of damages, it did not create a new cause
of action. Rudnicki, ¶ 46. The supreme court emphasized that its
decision answered “the narrow question of who may seek a specific
remedy when an unemancipated minor is injured. It does not create
a new class of claims for the court to adjudicate. Nor does it impose
new duties or obligations on the parties.” Id. (emphasis added).
Section 13-21-101 is plainly concerned with the date the “action”
accrued. Because Rudnicki did not create a new “action,” it does
not impact the date from which prejudgment interest is calculated
under that statute.
¶ 26 We are not persuaded otherwise by the out-of-state cases Dr.
Bianco cites because they are distinguishable either based on the
unique language of the applicable interest statute or because the
change in the law created a new right to maintain an action rather
than a new right to seek a specific remedy. See Diaz v. State, 2016
MT 270, ¶ 12 (the applicable statute provided that prejudgment
interest was recoverable from the day that the “right to recover . . .
is vested in the person” (quoting Mont. Code Ann. § 27-1-211 (West
2023))); Cardi Corp. v. State, 561 A.2d 384, 385-88 (R.I. 1989) (the
14 applicable statute calculated interest from “the date the cause of
action accrued,” but the court concluded that the plaintiff’s claim
did not accrue until the legislature passed an act that waived
sovereign immunity, which first gave the plaintiff the “right to sue
the state”).
¶ 27 Third, we are not persuaded by the distinction Dr. Bianco
draws between the accrual of a cause of action and the entitlement
to a specific category of damages. Dr. Bianco contends that
prefiling, prejudgment interest on Alexander’s pre-majority medical
expenses “cannot logically compensate [Alexander] for the loss of
such damages during a period in which he was not entitled to
recover them.” True, as Dr. Bianco points out, a plaintiff is only
entitled to interest on damages to which they are legally entitled.
See Morris, 185 P.3d at 780 (the plaintiff was not entitled to interest
on damages awarded by the jury that exceeded defendant’s
proportion of comparative fault or that exceeded the HCAA’s cap on
noneconomic damages); see also Allstate Ins. Co. v. Starke, 797 P.2d
14, 19 (Colo. 1990) (Prejudgment interest “represents a legislatively
prescribed award for any delay in plaintiff’s receipt of money to
which he has been found legally entitled.” (quoting Houser v.
15 Eckhardt, 35 Colo. App. 155, 160-61, 532 P.2d 54, 57 (1974))). But
that unremarkable tenet says nothing about the date from which
such interest should be calculated once the plaintiff becomes legally
entitled to damages. Section 13-21-101(1) does. Even though
Alexander did not become “legally entitled” to pre-majority medical
expenses until the supreme court decided Rudnicki, now that he is
legally entitled to those damages, section 13-21-101(1) allows him
to claim interest “from the date the action accrued.” (Emphasis
added.) We are not at liberty to rewrite the statute. See Yen, LLC v.
Jefferson Cnty. Bd. of Comm’rs, 2021 COA 107, ¶ 32.
¶ 28 We acknowledge that the supreme court has determined that
prejudgment interest cannot be awarded on punitive damages in
part because the “right to punitive damages does not exist until
such damages are awarded by a trier of fact.” Seaward Constr. Co.,
817 P.2d at 976. But a complete reading of Seaward Construction
reveals that its result was driven by the different purposes for
awards of punitive damages and awards of compensatory damages
and prejudgment interest.
¶ 29 The supreme court reasoned that punitive damages “are a
distinct form of damages awarded for a particular purpose” — “not
16 as compensation to the injured party for the wrong done, but as a
punishment of the wrongdoer as an example to others.” Id. at 973-
74 (quoting Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 440,
263 P.2d 815, 817 (1953)). By comparison, compensatory damages
“are awarded to cover loss caused by the negligence of another and
are intended to make the injured party whole.” Id. at 975.
¶ 30 To that end, “[t]he addition of prejudgment interest to a
judgment for compensatory damages recognizes that the loss
caused by the tortious conduct occurred at the time of the resulting
injury but that the damages paid to compensate for that loss are
not received by the injured party until later.” Id. Such interest is “a
component of damages rather than interest as such” and is meant
to compensate the plaintiff for “the time value of the award
eventually obtained against the tortfeasor.” Id. at 976 (quoting
Starke, 797 P.2d at 19); see also Old Republic Ins. Co. v. Ross, 180
P.3d 427, 437 (Colo. 2008).
¶ 31 “The same cannot be said of prejudgment interest on punitive
damages,” which “do not compensate for loss resulting from the
injury” and to which the injured party has “no entitlement of any
kind . . . unless and until awarded by the trier of fact.” Seaward
17 Constr. Co., 817 P.2d at 975. Prejudgment interest on punitive
damages “would serve merely as an additional penalty and is not
necessary to make the injured party whole.” Id. at 976. Thus,
allowing prejudgment interest on punitive damages “would be
inconsistent with the compensatory purpose of section 13-21-101.”
Id. The supreme court concluded that prejudgment interest is not
authorized on an award of punitive damages. Id. at 979.
¶ 32 Because the prefiling, prejudgment interest at issue in this
case is a component of compensatory damages intended to make
Alexander whole for a loss he suffered at birth — even though he
did not become legally entitled to that category of damages until
Rudnicki — an award of such interest is consistent with the
compensatory purpose of section 13-21-101.
¶ 33 Fourth, we disagree with Dr. Bianco that our interpretation is
contrary to legislative intent. As just discussed, awarding prefiling,
prejudgment interest from Alexander’s date of birth furthers the
compensatory purpose of the statute. But Dr. Bianco argues that
awarding nearly seventeen years of prejudgment interest has “the
punitive effect of dramatically increasing [Dr. Bianco’s] liability
without serving the intended purpose of such interest.” He further
18 asserts that such an award is unfair because it punishes him
“solely because the supreme court determined that changing
circumstances wholly beyond [his] control justified changing the
law on which [he] relied.”3 In essence, Dr. Bianco argues that our
plain language interpretation leads to an absurd result.
¶ 34 Although we must avoid interpretations that lead to absurd
results, we may only disregard the plain language of a statute
“when the resultant absurdity is ‘so gross as to shock the general
moral or common sense.’” Dep’t of Transp. v. City of Idaho Springs,
192 P.3d 490, 494 (Colo. App. 2008) (quoting Crooks v. Harrelson,
282 U.S. 55, 60 (1930)). Short of that, it is the legislature’s
responsibility to address unintended consequences and undesirable
results. Id.
3 Dr. Bianco asserts that awarding prefiling, prejudgment interest in
this case does not serve to deter a defendant from wrongfully withholding payment. This argument appears to relate to section 5-12-102, C.R.S. 2023, rather than section 13-21-101, C.R.S. 2023. Although prejudgment interest under the former statute is calculated from “the date of wrongful withholding,” § 5-12-102(1)(a), interest under the latter statute is calculated from “the date the action accrued,” § 13-21-101(1). See also Colwell v. Mentzer Invs., Inc., 973 P.2d 631, 641 (Colo. App. 1998).
19 ¶ 35 Seventeen years of interest on medical expenses Alexander
incurred because he was injured at birth seventeen years ago by Dr.
Bianco’s negligence does not shock the general moral or common
sense. The result does not justify overriding the plain language of
the statute. See id.; Ryser v. Shelter Mut. Ins. Co., 2019 COA 88,
¶ 45 (policy considerations did not justify disregarding the plain
language of the applicable statute).
¶ 36 Accordingly, we conclude that the district court did not err by
awarding Alexander prefiling, prejudgment interest from the date
his cause of action accrued, which was his date of birth.
C. Interest in Excess of the HCAA Damages Limitation
¶ 37 Dr. Bianco contends that the district court erred by awarding
prefiling, prejudgment interest resulting in a total award that
exceeds the $1 million damages limitation in the HCAA. We
conclude that the plain language of section 13-64-302 supports the
20 1. Prefiling, Prejudgment Interest on Economic Damages May Exceed the Damages Limitation in the HCAA
¶ 38 The HCAA limits the “total amount recoverable for all
damages” in a medical malpractice action to “one million dollars.”
§ 13-64-302(1)(b). But there is an exception to the limitation:
[I]f, 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.
Id. The HCAA also limits noneconomic damages to $300,000,
without exception. § 13-64-302(1)(b), (c). Prefiling, prejudgment
interest awarded pursuant to section 13-21-101 “is deemed to be a
part of the damages awarded in the action for the purposes of this
section and is included within each of the limitations on liability.”
§ 13-64-302(2).
¶ 39 Thus, prefiling, prejudgment interest is an element of damages
subject to the $1 million damages cap. See id.; see also Seaward
Constr. Co., 817 P.2d at 976. But if the court finds the requisite
good cause and unfairness, can prefiling, prejudgment interest be
awarded if doing so results in a total award beyond the cap?
21 ¶ 40 A division of this court recently answered this question
affirmatively. See Scholle, ¶¶ 103-108. The Scholle division
reasoned that
[d]amages are capped under the HCAA, subject to being uncapped upon a showing of “good cause” and “unfair[ness].” § 13-64-302(1)(b), (1)(c). Prefiling, prejudgment interest is part of damages. § 13-64-302(2). As a matter of pure logic, then, prefiling, prejudgment interest is part of “damages” capped under the HCAA, subject to being uncapped upon a showing of good cause and unfairness . . . .
Id. at ¶ 107.4
¶ 41 Dr. Bianco urges us not to follow Scholle, arguing that the
division’s analysis is flawed. See Chavez v. Chavez, 2020 COA 70, ¶
13 (one division of the court of appeals is not bound by another).
Even if good cause and unfairness are found, only “past and future
economic damages” can exceed the cap, and Dr. Bianco contends
that prefiling, prejudgment interest is not part of “past and future
economic damages.” We agree with the Scholle division’s
4 The Colorado Supreme Court declined to grant a cross-petition for
certiorari on the question whether prefiling, prejudgment interest may be awarded in excess of the $1 million damages cap under the HCAA. See Scholle v. Ehrichs, (Colo. No. 22SC639, Apr. 10, 2023) (unpublished order).
22 conclusion, subject to one clarification. Because only past and
future economic damages may exceed the $1 million limitation, we
conclude that only prefiling, prejudgment interest on past and
future economic damages may exceed that limitation.
¶ 42 The plain language of the statute supports our conclusion.
Section 13-64-302(2) provides that prefiling, prejudgment interest is
“part of the damages awarded” and “is included within each of the
limitations on liability” set forth in paragraph (1). (Emphasis
added.) There are two such limitations on liability: a hard cap of
$300,000 on “noneconomic loss or injury,” which cannot be
exceeded; and a soft cap of $1 million on “all damages,” which can
be exceeded by an award of “past and future economic damages” if
the other requirements of the statute are met. § 13-64-302(1)(b);
see also Ochoa, 212 P.3d at 970.
¶ 43 This structure makes clear that the legislature did not view
prefiling, prejudgment interest as a standalone category of
damages. Instead, it contemplated that prefiling, prejudgment
interest on a particular category of damages is part of the damages
awarded for that category. Prefiling, prejudgment interest on
noneconomic damages must be part of the noneconomic damages
23 awarded; otherwise, there would be no reason to specify that
prefiling, prejudgment interest is subject to the noneconomic
damages cap. See Dupont v. Preston, 9 P.3d 1193, 1199 (Colo. App.
2000) (reasoning under the former, lower economic damages
limitation that a “plaintiff may not recover more than $250,000 in
noneconomic loss, inclusive of prejudgment interest”), aff’d on other
grounds, 35 P.3d 433 (Colo. 2001). If prefiling, prejudgment
interest was itself a separate category of damages, it would be
subject only to the $1 million cap on “all damages,” and the
legislature’s reference to “each” limitation would be meaningless.
See People v. Iannicelli, 2019 CO 80, ¶ 47 (“We cannot . . . interpret
statutory language in such a way as to render any of the statute’s
terms meaningless.”).
¶ 44 Following the same logic, prefiling, prejudgment interest on
“past and future economic damages” is part of “past and future
economic damages” and is awardable beyond the $1 million
24 limitation, provided the other requirements of the statute are met.
§ 13-64-302(1)(b); see Scholle, ¶ 107.5
¶ 45 We are not persuaded to reach a different result by the
statute’s legislative history. Of course, because the statute is
unambiguous, we need not look to other aids of statutory
construction, such as legislative history. See Nieto, ¶ 12. We may
nonetheless do so to assess Dr. Bianco’s contentions and support
our conclusion based on the plain language of the statute. See
B.G.’s, Inc. v. Gross, 23 P.3d 691, 696 (Colo. 2001) (considering
legislative history to support plain language interpretation of a
statute); Adams v. Corr. Corp. of Am., 187 P.3d 1190, 1194 (Colo.
App. 2008) (considering legislative history to assess the defendant’s
contentions).
¶ 46 The legislature adopted section 13-64-302 in response to
Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901, 911 (Colo.
5 Prefiling, prejudgment interest on any category of damages that is
neither “past and future economic damages” nor considered noneconomic losses for purposes of the HCAA’s noneconomic loss limitation, see Preston v. Dupont, 35 P.3d 433, 441-42 (Colo. 2001) (“[N]oneconomic damages for physical impairment and disfigurement are not included in the definition of noneconomic loss contained in the HCAA’s cap on such damages.”), remains limited by the $1 million total damages cap without exception.
25 1993), which held that prejudgment interest was not included in
the damages subject to the $1 million limitation under the HCAA.
See Dupont, 9 P.3d at 1199. As a result, Dr. Bianco argues that
allowing prefiling, prejudgment interest to exceed $1 million is
contrary to the legislature’s intent to include such interest within
that limitation. But our interpretation does not run afoul of the
legislature’s intent to course correct after Scholz. Under our
analysis, prefiling, prejudgment interest is subject to the $1 million
damages limitation, consistent with the plain language of section
13-64-302(2). But the legislature also provided a mechanism to
allow past and future economic damages — of which prefiling,
prejudgment interest is a component — to exceed that limitation
upon a showing of good cause and a finding of unfairness. See
§ 13-64-302(1)(b); Scholle, ¶ 107. It did not provide that prefiling,
prejudgment interest may never exceed the cap. Had that been its
intent, it would have said so explicitly. See Ceja v. Lemire, 154 P.3d
1064, 1067 (Colo. 2007); People v. Denhartog, 2019 COA 23, ¶ 20.
¶ 47 We are also not convinced to reach a different result by Dr.
Bianco’s reliance on Wallbank v. Rothenberg, where the trial court
entered judgment on a jury verdict awarding over $1.3 million
26 without addressing whether good cause existed for exceeding the
damages cap and without addressing prejudgment interest. 74
P.3d 413, 420 (Colo. App. 2003). The division determined that a
remand was necessary for the court to make findings on both
issues. Id. It explained that “[u]nder the one million dollar
limitation, the Wallbanks may not recover additional amounts for
prefiling interest.” Id. at 420. Then, the division concluded that, “if
the trial court finds good cause and unfairness justifying the award
for lost future earnings, then prefiling interest also may not be
awarded for that portion of the judgment that exceeds one million
dollars, because prefiling interest is included in the total limit.” Id.
¶ 48 How the Wallbank division reached its conclusion about
prefiling, prejudgment interest is unclear to us. Based on the plain
language of section 13-64-302(1)(b) and the jury’s verdict, the trial
court could not have found good cause to exceed the damages
limitation. The division analyzed the 2002 version of the statute,
which allowed the court to exceed the cap if the amount of “lost
past earnings and the present value of lost future earnings”
combined with the amount of past and future “medical and other
health care costs” would exceed the limitation. § 13-64-302(1),
27 C.R.S. 2002; compare § 13-64-302(1), C.R.S. 2023 (allowing the
court to exceed the cap for “past and future economic damages”).
But the plaintiff was awarded only $166,060 in past and future lost
earnings and medical expenses. A prerequisite for exceeding the
cap was not met. The division also cited Shannon v. Colorado
School of Mines, 847 P.2d 210, 213 (Colo. App. 1992), which held
that prejudgment interest could not be awarded on future lost
wages under section 5-12-102, C.R.S. 1992; it did not analyze
section 13-21-101. Given these differences, we do not find
Wallbank helpful. See Chavez, ¶ 13.
¶ 49 We are similarly unpersuaded by Dr. Bianco’s citation to
Ochoa, 212 P.3d at 970. There, the plaintiff received a
noneconomic damage award that was “properly reduced to
$250,000” under the then-existing noneconomic damages limitation
in the HCAA. Id. The plaintiff acknowledged that she could not
recover prefiling, prejudgment interest on her noneconomic
damages because such interest was subject to and could not exceed
the noneconomic damages cap. Id. But she sought to recover more
post-filing, prejudgment interest by calculating such interest on the
sum of the capped amount of damages plus the prefiling,
28 prejudgment interest that she otherwise would have been entitled to
but for the noneconomic damages cap. Id. The division rejected the
plaintiff’s argument because calculating post-filing, prejudgment
interest on prefiling, prejudgment interest in excess of the
noneconomic damages limitation — prefiling, prejudgment interest
the plaintiff was not entitled to recover under the statute — would
be inconsistent with section 13-21-101. Id. at 970-71.
¶ 50 Notably, the HCAA does not provide a mechanism for the trial
court to exceed the noneconomic damages limitation upon a
showing of good cause and a finding of unfairness. See § 13-64-
302(1)(b). Nor did Ochoa involve a question of whether prefiling,
prejudgment interest was recoverable where the trial court made
appropriate findings to exceed the total damages cap. Ochoa is
likewise unhelpful. See Chavez, ¶ 13.
¶ 51 Finally, we are not swayed by Dr. Bianco’s contention that our
plain language interpretation goes against the policy purposes of
the HCAA. In relevant part, the HCAA was enacted “to assure the
continued availability of adequate health-care services . . . by
containing the significantly increasing costs of malpractice
insurance.” § 13-64-102(1), C.R.S. 2023. Dr. Bianco contends that
29 awarding prefiling, prejudgment interest beyond the total damages
limitation will significantly increase costs associated with practicing
medicine in Colorado and result in “astronomical awards of
prejudgment interest” that will ultimately result in a decline in
quality medical care.
¶ 52 We recognize that adhering to the $1 million damage limitation
furthers the legislature’s stated policy reasons for enacting the
HCAA. See id. Even so, the legislature expressly authorized courts
to award past and future economic damages that exceed that
limitation if there is a showing of good cause and a finding of
unfairness. See § 13-64-302(1)(b). The legislature apparently
recognized that the policy behind the HCAA should, under certain
circumstances, yield to a plaintiff’s right to be made whole.
Balancing competing policy interests is a task for the legislature.
See Burnett v. State Dep’t of Nat. Res., 2015 CO 19, ¶ 13. It is not
our job to second-guess those policy judgments. See Fontanari v.
Colo. Mined Land Reclamation Bd., 2023 COA 15, ¶ 28.
¶ 53 Alexander’s past and future economic damages, including his
award of pre-majority medical expenses, exceeded $1 million. The
district court found good cause to exceed the $1 million damages
30 limitation and determined that it would be “manifestly unfair” to
apply the limitation in this case. Dr. Bianco does not challenge
those findings on appeal. Prefiling, prejudgment interest is an
element of Alexander’s past and future economic damages. Thus,
the court did not err by awarding prefiling, prejudgment interest on
Alexander’s pre-majority medical expenses, even though his total
damages award exceeded $1 million.
2. The Law of the Case Does Not Alter Our Conclusion
¶ 54 Dr. Bianco contends that, even if prefiling, prejudgment
interest on economic damages may exceed the HCAA damages
limitation, the district court nonetheless erred by departing from its
previous ruling declining to award Alexander any prefiling,
prejudgment interest. Dr. Bianco contends that, under the “law of
the case,” the court was not free to modify that ruling unless it was
“no longer sound because of changed conditions, factual errors in
the previous ruling, intervening changes in the law, or manifest
injustice resulting from the original ruling.” People v. Allen, 885
P.2d 207, 212 (Colo. 1994).
¶ 55 But had the court ruled that Alexander was not entitled to
prefiling, prejudgment interest on his award of pre-majority medical
31 expenses — whether based on “law of the case” or not — that ruling
would have been erroneous, as we have explained. We are not
bound by the “law of the case” to affirm a lower court’s erroneous
ruling. See Sidman v. Sidman, 2016 COA 44, ¶ 10 (explaining that
“the law of the case from the district court [does] not bind us on
appeal”).
III. Disposition
¶ 56 The judgment is affirmed.
JUDGE TOW and JUDGE SCHOCK concur.