25CA1102 Kahm v Hospice of Metro 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1102 City and County of Denver District Court No. 24CV31249 Honorable Christopher J. Baumann, Judge
Karla Kahm, individually and as heir at law of Richard Kahm, deceased,
Plaintiff-Appellant,
v.
Hospice of Metro Denver, Inc., d/b/a The Denver Hospice, a Colorado nonprofit corporation,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE MOULTRIE Gomez and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Law Offices of J.M. Reinan, P.C., Jerome M. Reinan, Jordana Griff Gingrass, Denver, Colorado, for Plaintiff-Appellant
Hall Booth Smith, P.C., Brenda S. McClearn, Greenwood Village, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiff, Karla Kahm, appeals the trial court’s judgment
denying various pretrial motions. We affirm.
I. Factual Background
¶2 Karla1 is the daughter and heir at law of Richard Kahm. Karla
became Richard’s primary caregiver after he was diagnosed with
dementia. In November 2023, Karla, as Richard’s medical proxy,
consented to Richard receiving hospice services from The Denver
Hospice (TDH). He received in-home hospice services until
mid-December when Karla admitted him to TDH’s inpatient care
center (ICC) for a short respite stay.
¶3 At the time of Richard’s admission, Karla signed documents
authorizing TDH to provide Richard with medications that would
maximize his comfort level. TDH’s clinical notes about Richard
state that, while at home, he was being treated for various ailments
including agitation but was refusing medications. Upon Richard’s
admission to the ICC, nurse practitioner Tracy Fehr examined
Richard. She created a medication plan of care that included,
1 To avoid confusion between those who share a last name, we refer
to parties in this opinion by their first names. We intend no disrespect in doing so.
1 among other things, Ativan for anxiety, Haldol for agitation, and
morphine for pain.
¶4 Karla called TDH shortly after Richard’s admission into the
ICC and told one of the nurses that Haldol had a paradoxical effect
on Richard, meaning he would become violent. Nevertheless, TDH
providers administered Ativan, Haldol, and morphine (collectively,
the sedating medications) to Richard twice during his first and
second days in the ICC. When Karla called TDH on the second day
and spoke to nurses, she expressed that she was upset about the
medications they were giving Richard and said that Ativan also had
a paradoxical effect on Richard. She requested that providers stop
giving him medications. Clinical notes from various nurses stated
that Richard didn’t exhibit a paradoxical effect to Ativan or Haldol;
rather, he showed a good response to receiving those medications
after showing signs of anxiety and restlessness.
¶5 Providers didn’t give Richard Ativan or Haldol on the third day,
but they did give him morphine. At the end of Richard’s third day
in the ICC, Karla revoked her consent to hospice services and had
Richard transferred to a hospital to receive fluids due to her
concern that Richard had become dehydrated during his stay in the
2 ICC. Shortly thereafter, Richard was admitted into a rehabilitation
facility operated by the Julia Temple Center (JTC).
¶6 In January 2024, while Richard was in JTC’s care, he fell and
broke his hip, which required surgery. He passed away
approximately four months later.
II. Procedural Background
¶7 In April 2024, shortly before Richard passed away, Karla filed
a complaint, as Richard’s next friend,2 against TDH and JTC. In
the initial complaint, Karla asserted negligence claims against both
TDH and JTC, and breach of fiduciary duty and breach of contract
claims against TDH. A month later, and after Richard had passed
away, she filed a first amended complaint and amended the
negligence claims to wrongful death claims.
¶8 The court set a nine-day jury trial for June 2025. The parties
filed a proposed joint case management order (CMO), which the
court adopted in June 2024 after modifying the parties’ proposed
dates for expert report disclosures and the close of discovery. Per
the CMO, discovery closed at the end of April 2025.
2 C.R.C.P. 17(c) allows an incompetent person’s representative to
sue on their behalf as their “next friend.”
3 ¶9 About six months before trial, JTC reached a settlement with
Karla and was dismissed from the case. Around the same time,
Karla’s counsel deposed Dr. Kimberly Bennett — Richard’s hospice
physician while he was receiving in-home services — and Ernesto
Lopez — TDH’s president. Karla’s counsel also scheduled taking
Fehr’s deposition. However, because the parties had mediation
scheduled for early March 2025, counsel for both parties agreed to
postpone Fehr’s deposition until after mediation.
¶ 10 About a week and a half after the unsuccessful mediation,
Karla filed a “Motion for Leave to Amend Complaint” (motion to
amend), a proposed second amended complaint, and a “Motion for
Continuance of Trial and Existing Case Management Deadlines”
(motion to continue). In the motion to amend, Karla sought to
dismiss the wrongful death and breach of contract claims and add
four new claims — violation of the Colorado Consumer Protection
Act, fraud, extreme and outrageous conduct, and civil conspiracy.
She also sought to add a claim for exemplary damages under
section 13-64-302.5(3), C.R.S. 2025, and to add Fehr as a
defendant.
4 ¶ 11 In support of the request to amend her complaint, Karla
argued that JTC’s dismissal required her to “reformulate the facts
and claims” in her first amended complaint. She also argued that
there was a “significant change” in her “understanding of the facts
gained through discovery” and that the depositions “unveiled facts
previously unknown that require[ed] her to amend her [c]omplaint
to allege those facts and the new claims that accompany those
facts.” Specifically, she asserted that she had learned that TDH
had a “standing order” to give all patients, regardless of consent,
the sedating medications upon their admission to the ICC. She
argued that because the new evidence changed the way she needed
to take discovery and prepare for trial, she also needed to continue
the June 2025 trial dates and reset the discovery deadlines.
¶ 12 A couple of days later, and on the same date that expert
disclosures were due, Karla’s counsel filed a motion requesting to
stay the deadline for disclosing experts (motion to stay deadlines)
pending the court’s ruling on her other motions.
¶ 13 TDH opposed the motions. It argued that the court should
deny the motion to amend based on Karla’s undue delay, undue
prejudice, and futility of amendment. TDH argued the court should
5 deny the motions to continue and to stay because Karla hadn’t
demonstrated good cause for either request. TDH also filed a
motion for summary judgment, noting that Karla needed expert
testimony to support her claims, but she hadn’t disclosed any
experts before the disclosure deadline passed.
¶ 14 The court held a hearing on Karla’s motions a month before
the scheduled start of the jury trial. The court said that it
understood the basis for Karla’s request for a continuance to be her
assertion that she learned “new information” from Lopez’s
deposition and during mediation that TDH had “a standing order to
medicate all of its patients, sedating them upon admission.” The
court asked Karla’s counsel to direct it to a specific page where
Lopez indicated that TDH had a standing order for the sedating
medications.
¶ 15 Karla’s counsel admitted that they couldn’t pinpoint any place
in Lopez’s deposition where he admitted that a standing order to
administer the sedating medications existed. Instead, Karla’s
counsel argued that amending her complaint and continuing the
trial were necessary because, during a predeposition meeting that
Karla recorded, Lopez said that Richard was “mistakenly”
6 administered the sedating medications contrary to Karla’s consent;
then Lopez, in a subsequent deposition, “backed-off” that position
but acknowledged that Richard was given the sedating medications
because Fehr deemed those medications appropriate; and later
during mediation, TDH posited it had a standing order to medicate
people upon admission to the ICC.
¶ 16 For its part, TDH denied that a standing order for the sedating
medications existed, which it informed Karla of in its response to
the written discovery requests she issued after the depositions and
mediation. TDH asked the court to deny Karla’s motions because
her motions weren’t “based on learning any new information” but
rather were based on “new ideas in [p]laintiff’s counsel’s head based
on old evidence.”
¶ 17 After hearing argument from counsel for both parties, the
court denied Karla’s motions. In denying the motion to amend, the
court said it couldn’t conclude that Karla learned new information
during discovery that would support amending her complaint. The
court noted that, although the parties disputed the reason why
TDH administered the sedating medications to Richard, the fact
that the medications were administered without Karla’s consent
7 was information contained in the first amended complaint. The
court found that resolving any inconsistencies in Lopez’s
statements was up to the jury.
¶ 18 The court also determined that Karla’s resolution of her claim
against JTC didn’t warrant allowing her to rewrite her complaint to
add multiple new claims against TDH. Likewise, the court found
that Fehr had been a central figure from the outset of the case, so
amending the complaint to add her as a defendant wasn’t
warranted because it would double the claims and “significantly
expand[] the litigation.”
¶ 19 The court said it would revisit Karla’s request to add
exemplary damages if evidence of willful and wanton conduct came
out at trial.
¶ 20 Because the court concluded that new information hadn’t
been uncovered during discovery, it found that Karla hadn’t
established good cause to continue the trial or conduct further
discovery.
¶ 21 Karla’s counsel acknowledged the court’s rulings and
expressed concerns about their ability to move forward on her
existing claims without expert witnesses. Thus, at the conclusion
8 of the hearing, Karla’s counsel withdrew the wrongful death claim.
Shortly after the hearing, Karla voluntarily withdrew the breach of
contract claim and, because Karla conceded expert testimony was
necessary to support the breach of fiduciary claim, the court
concluded that Karla had effectively confessed TDH’s motion for
summary judgment.3 Karla filed an unopposed motion for
certification under C.R.C.P. 54(b), which the court granted.
Although the court improperly certified the judgment under Rule
54(b),4 it alternatively granted TDH’s motion for summary
judgment. As a result, the court’s order was a final judgment
because it resolved Karla’s only remaining claim — breach of
3 A party is entitled to summary judgment when there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Miller v. Van Newkirk, 628 P.2d 143, 145 (Colo. App. 1980); see also Martinez v. Badis, 842 P.2d 245, 252 (Colo. 1992) (“[T]he plaintiff alleging a breach of fiduciary duty arising from [a professional] relationship must establish by means of expert testimony the applicable standard of care and the defendant’s failure to adhere to that standard of care.”). 4 “C.R.C.P. 54(b) requires, among other things, that an entire claim
for relief be finally adjudicated.” Wilson v. Kennedy, 2020 COA 122, ¶ 30 (quoting Harding Glass Co. v. Jones, 640 P.2d 1123, 1127 (Colo. 1982)).
9 fiduciary duty. Accordingly, this court has jurisdiction to consider
Karla’s appeal.
¶ 22 Karla argues that the court abused its discretion by denying
her motions to amend and to continue and by prohibiting her from
conducting additional discovery. Because we disagree, we affirm
the judgment.
III. Applicable Legal Principles
A. Amending Pleadings
¶ 23 C.R.C.P. 15(a) requires parties to obtain court authorization to
amend pleadings in certain instances. “[T]rial courts are
encouraged to look favorably on requests to amend pleadings.” Am.
C.L. Union of Colo. v. Whitman, 159 P.3d 707, 712 (Colo. App. 2006);
see C.R.C.P. 15(a) (leave to amend pleadings “shall be freely given
when justice so requires”). Whether a court should grant a
plaintiff’s request for leave to amend depends on the specific facts
and circumstances of the case. Benton v. Adams, 56 P.3d 81, 86
(Colo. 2002).
¶ 24 Although leave should be given freely, a court may deny a
request for leave to amend because of “undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies in the pleadings
10 via prior amendments, undue prejudice to the opposing party, and
futility of amendment.” Id. But see Eagle River Mobile Home Park,
Ltd. v. Dist. Ct., 647 P.2d 660, 663 (Colo. 1982) (“[D]elay alone,
without any specifically resulting prejudice . . . generally is not a
sufficient basis for precluding a party from amending its
complaint.” (citation modified)).
¶ 25 To avoid undue delay, “[p]arties should join issues and other
parties needed for just and efficient resolution of the case as early
as practicable in the litigation.” Benton, 56 P.3d at 88. A trial court
may properly deny a motion to amend when a moving party knew
the basis for the amendment when they filed their original pleading
and failed to state an acceptable reason for the delay in bringing the
proposed amendment. Polk v. Denv. Dist. Ct., 849 P.2d 23, 27
(Colo. 1993).
¶ 26 The court “must assess the motion to amend in light of the
totality of the circumstances,” meaning “[i]t must balance the policy
favoring the amendments of pleadings against the burdens which
granting the amendment may impose on the other part[y].” Id. at
26.
11 B. Exemplary Damages Under Section 13-64-302.5(3)
¶ 27 When a plaintiff asserts a negligence claim against a
healthcare professional, they may seek to amend their pleadings to
include a request for exemplary damages under section
13-64-302.5(3), but “only after substantial completion of discovery
and only after the plaintiff establishes prima facie proof of a triable
issue.” § 13-64-302.5(3). If the court allows the plaintiff to amend
their complaint, then “it may also, in its discretion, permit
additional discovery on the question of exemplary damages.” Id.
¶ 28 “Prima facie proof of a triable issue of exemplary damages is
established by a showing of a reasonable likelihood that the issue
will ultimately be submitted to the jury for resolution,” which “may
be established through discovery, by evidentiary means, or by an
offer of proof.” Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007)
(citation modified).
C. Requests for Continuance
¶ 29 A party’s motion to continue must be supported by good
cause. See C.R.C.P. 121 § 1-11. “Good cause exists when there are
unforeseen and exceptional circumstances requiring a
12 continuance.” Miller v. Brannon, 207 P.3d 923, 932 (Colo. App.
2009).
¶ 30 “In determining whether to grant a continuance, the court
should consider the circumstances of the particular case, weighing
the right of the party requesting the continuance to a fair hearing
against the prejudice that may result from delay.” Butler v. Farner,
704 P.2d 853, 858 (Colo. 1985); see also Miller, 207 P.3d at 932
(“[A] court should be mindful of the problems associated with a
delay of trial, including devaluation of a judgment, anxiety in
litigants, uncertainty for lawyers, loss and deterioration of evidence,
waste of court resources, increase of the costs of litigation, and
confusion and conflict in the allocation of court resources.”).
D. Standard of Review
¶ 31 The decision to grant or deny a motion for leave to amend a
complaint, to add exemplary damages, or to continue trial is left to
the sound discretion of the trial court. See Polk, 849 P.2d at 25
(abuse of discretion standard for pleading amendments); Stamp,
172 P.3d at 449 (abuse of discretion standard for ruling on
exemplary damages amendment); Todd v. Bear Valley Vill.
Apartments, 980 P.2d 973, 976 (Colo. 1999) (abuse of discretion
13 standard for continuances). A court abuses its discretion when its
ruling is “manifestly arbitrary, unreasonable, or unfair” or when it
misapplies the law. Rains v. Barber, 2018 CO 61, ¶ 8 (citation
omitted).
IV. The Court Didn’t Abuse Its Discretion When It Denied Karla’s Motions
A. Motion to Amend
¶ 32 Karla contends the court erred by denying her motion to
amend because (1) the discovery of new information necessitated
her amendment; (2) the court didn’t find that her amendment was
brought in bad faith or through misconduct; and (3) the court didn’t
analyze her request to add exemplary damages. We disagree with
each of her contentions.
¶ 33 As an initial matter, we reject Karla’s assertion that our review
of the court’s determination of her request to amend her complaint
to add exemplary damages involves a mixed question of fact and
law. Because we aren’t reviewing the court’s statutory
interpretation of section 13-64-302.5(3), we review the court’s
determination for an abuse of discretion. See Stamp, 172 P.3d at
449.
14 1. Alleged New Information
¶ 34 Karla asserts that she didn’t allege facts that TDH had a
“policy or practice of sedating all of its ICC patients on admission”
in her first amended complaint because she only learned of this
“new information,” which formed the factual basis for the new
claims, through depositions and mediation. She similarly asserts
that information she learned during Lopez’s deposition required her
to join Fehr as a defendant because she previously believed that
Fehr’s medication order was a mistake rather than intentional.
Karla thus argues that “[t]he district court’s findings and
conclusions are both contrary to the weight of the record evidence
and unreasonable in context.” We aren’t persuaded.
¶ 35 The court’s findings reflect that it thoroughly reviewed the
pleadings and depositions submitted by the parties before the
hearing and ultimately concluded that Karla’s motion to amend was
unduly delayed, which caused undue prejudice to TDH.
¶ 36 As the court noted, Karla already knew that TDH staff
intentionally administered the sedating medications to Richard
because that information was included in her first amended
complaint. The record shows that Karla requested Richard’s
15 medical records from TDH days after she revoked hospice services,
which was approximately four months before she initiated litigation.
¶ 37 The record also refutes that Karla learned through the
depositions that there was a standing order. Indeed, Karla’s
counsel couldn’t identify in the deposition testimony submitted to
the court where TDH, through Lopez or otherwise, made such an
admission. And, even assuming without deciding, that a standing
order existed and that Karla learned of its existence during the
March 2025 mediation, she doesn’t explain why she didn’t attempt
to conduct discovery earlier in the case when the discovery
deadlines were established in June 2024. See Benton, 56 P.3d at
88; Union Ins. Co. v. Kjeldgaard, 820 P.2d 1183, 1186 (Colo. App.
1991) (A party who makes a belated request for leave to amend has
the burden of demonstrating a justification — such as lack of
knowledge, mistake, inadvertence, or some other reason — for the
untimely request). Likewise, Karla knew about Fehr’s involvement
in administering Richard’s medications before she initiated
litigation and could have joined Fehr at the outset of the litigation
or in her first amended complaint. See Benton, 56 P.3d at 88.
16 ¶ 38 In objecting to the motion to amend, TDH argued that it would
be prejudiced because the new claims would “significantly alter the
basic thrust” of the relief Karla sought, require it to substantially
change the defense it had been preparing for nearly a year, and
potentially expose it to exemplary damages in the form of punitive
or treble damages. And it asserted that, because Karla’s new claims
were based on information known to her throughout the case, they
would be prejudiced by not being able to proceed to trial as
scheduled.
¶ 39 The court ultimately found that granting Karla’s motion to
amend would “significantly” expand the litigation by adding twice as
many claims and going “down a road that [Karla] had not previously
[] sought.” Karla doesn’t challenge this finding, other than to say
that any prejudice could have been mitigated by a continuance.
But this argument misses the point — part of the prejudice to TDH
was that it was ready to proceed to trial on the scheduled date. And
a continuance only mitigates prejudice to an opposing party if the
prejudice asserted is an inadequate amount of time to prepare.
Eagle River, 647 P.2d at 663-64.
17 ¶ 40 Thus, the court’s implicit findings that Karla’s motion to
amend was unduly delayed and unduly prejudicial are
record-supported. Accordingly, we conclude that the court didn’t
abuse its discretion by denying the motion to amend. See Foster v.
Phillips, 6 P.3d 791, 796 (Colo. App. 1999); see also Polk, 849 P.2d
at 28 (where a party fails to provide a reasonable excuse for their
untimely motion for leave to amend, “[t]he policy favoring
amendment of pleadings does not prevail”).
2. Failure To Address Bad Faith or Misconduct
¶ 41 Karla argues that “[c]learly-established law stands for the
proposition that a district court should not deny a motion to amend
a complaint in the absence of some sort of dilatory or bad faith
conduct by the moving party.” We disagree.
¶ 42 Karla doesn’t provide any authority for the proposition that a
court must first find a moving party requested leave to amend in
bad faith or through misconduct before it can deny a motion to
amend. Rather, as we addressed above, the combination of undue
delay and prejudice to the opposing party is sufficient to support
the court’s denial. See Benton, 56 P.3d at 86; Eagle River, 647 P.2d
at 663.
18 3. Exemplary Damages
¶ 43 Karla argues that because section 13-64-302.5(3) requires
substantial completion of discovery before exemplary damages may
be sought, she couldn’t move to amend the complaint to add a
request for exemplary damages until after she conducted
depositions. She further argues that the court erred by indicating
that it would reconsider her request for exemplary damages if willful
and wanton evidence came out at trial because the statute allows
additional discovery, and she couldn’t conduct additional discovery
during trial.5
¶ 44 But, as we’ve just concluded, the court didn’t err by declining
to allow Karla to amend her complaint a second time. Because her
request to add a claim for exemplary damages was one of her
proposed amendments, we don’t address this issue further. See
Sedgwick Props. Dev. Corp. v. Hinds, 2019 COA 102, ¶ 31 (noting
5 She also argues that the court didn’t consider section
13-64-302.5(3), C.R.S. 2025, when it found that she could have or should have brought her exemplary damages claim in the original or first amended complaint. But the court didn’t make such a finding. Accordingly, this argument is unsupported and conclusory, and we won’t consider it. See Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010).
19 that the “cardinal principle of judicial restraint” is not deciding
issues unnecessary to the resolution of the case).
B. Motion to Continue
¶ 45 Finally, Karla argues that the court abused its discretion when
it denied her motion to continue. Karla again relies on her
argument that she learned new facts from Lopez’s deposition, which
she asserts required her to take additional discovery for the purpose
of proving exemplary damages and uncovering the nature and
extent of TDH’s standing policy. She also argues that a
continuance was necessary for her to develop expert testimony that
she hadn’t contemplated before filing the motion to amend. We
aren’t persuaded.
¶ 46 The record demonstrates that Karla had the opportunity to,
and indeed did, conduct additional discovery after mediation in an
attempt to explore her new theory that TDH had a standing order.
Karla’s counsel conceded that they sent TDH written discovery after
mediation in which they asked questions about the standing order.
The depositions were held in mid-January 2025, the mediation
occurred in early March 2025, and the discovery deadline expired at
the end of April 2025. Karla therefore had a minimum of
20 approximately six weeks after she contends she learned of the
standing order to conduct additional discovery. During this period
of time, Karla’s counsel could have deposed Fehr, but they chose
not to reschedule her deposition.
¶ 47 Similarly, Karla was aware of the expert disclosure deadline,
which expired two weeks after the scheduled mediation. It’s
undisputed that she didn’t disclose any experts before that deadline
and her motion to extend deadlines. At the hearing, Karla’s counsel
admitted they had made the strategic decision not to submit expert
disclosures up to that point. Although Karla argues that “the trial
continuance was necessary for Karla to develop expert testimony
that she had not contemplated prior to filing her proposed Second
Amended Complaint,” she doesn’t specify what expert testimony she
believed needed to be developed.
¶ 48 Thus, Karla didn’t assert any unforeseen and exceptional
circumstances. See Miller, 207 P.3d at 932. The court accordingly
found that Karla hadn’t demonstrated good cause to continue the
trial because, among other things, Karla’s request was based on
information that she had from the beginning of litigation.
21 ¶ 49 Because the court’s finding that Karla didn’t demonstrate good
cause has record support, we won’t disturb it. See id. at 933
(affirming the court’s denial of a continuance because the record
supported that the moving party didn’t demonstrate good cause).
Accordingly, we conclude that the court didn’t abuse its discretion
when it denied Karla’s motion to continue.
V. Disposition
¶ 50 The judgment is affirmed.
JUDGE GOMEZ and JUDGE BERGER concur.