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 21, 2024
2024COA121
No. 23CA2092, Maldonado v. GeneDx — Health and Welfare — Health Care Availability Act — Limitation of Actions — Genetic Testing and Counseling
A division of the court of appeals interprets for the first time
section 13-64-502(1), C.R.S. 2024, holding that the parents alleged
a plausible claim for relief against medical professionals and health
care institutions for damages arising from allegedly negligent
genetic testing and counseling that could have prevented or avoided
the birth of twins with a medical disorder if the professionals and
institutions had exercised the ordinary standard of care. As a
result, the division reverses the district court’s dismissal of the
parents’ claims under C.R.C.P. 12(b)(5). COLORADO COURT OF APPEALS 2024COA121
Court of Appeals No. 23CA2092 City and County of Denver District Court No. 23CV31908 Honorable Martin F. Egelhoff, Judge
Secily Maldonado, individually, and as next friends, natural parents, and guardians of their son JAC, a minor, and their daughter JMC, a minor child, John Anthony Carcanaques, individually, and as next friends, natural parents, and guardians of their son JAC, a minor, and their daughter JMC, a minor child, J.A.C., individually by and through their guardians and custodians Secily Maldonado and John Anthony Carcanaques, and J.M.C., individually by and through their guardians and custodians Secily Maldonado and John Anthony Carcanaques,
Plaintiffs-Appellants,
v.
GeneDx, Inc., a New Jersey corporation; GeneDx, LLC; a Non-Maryland limited liability company; Katelyn Beattie, MSG, CGC; Amanda Lindy, FACMG, PhD; Children’s Hospital of Colorado, a Colorado nonprofit corporation; Alison Ballard, RN, CPNP; Melissa Gibbons, MS, Genetic Counselor; Lisa McCown, MS, Genetic Counseling Graduate Student; and University of Colorado Hospital Authority located at Anschutz Campus,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur
Announced November 21, 2024
Chalat Hatten & Banker, PC, James H. Chalat, Evan P. Banker, Denver, Colorado; Purvis Thompson, LLP, John A. Purvis, Michael J. Thompson, Boulder, Colorado, for Plaintiff-Appellants Taylor Anderson LLP, John T. Osgood, James D. Murdock, II, Benjamin Wright, Christine L. Atwood, Denver, Colorado, for Defendants-Appellees GeneDx, Inc.; GeneDx, LLC; Katelyn Beattie; and Amanda Lindy
Hall Booth Smith, P.C., Elizabeth C. Moran, Rodrigo Lugo, Greenwood Village, Colorado; Hall Booth Smith, P.C., Ryan M. Donihue, Atlanta, Georgia for Defendant-Appellee Children’s Hospital of Colorado
Conklin Cardone & Rutberg, PC, John Conklin, Deann Zenisek, Denver, Colorado for Defendants-Appellees Alison Ballard, Melissa Gibbons, Lisa McCown, and University of Colorado Hospital Authority ¶1 In 1988, the General Assembly enacted the Health Care
Availability Act (HCAA), effective July 1, 1988. See §§ 13-64-101 to
-503, C.R.S. 2024. Currently, and as originally passed, section 13-
64-502(1), C.R.S. 2024, limits the scope of liability in certain
negligence actions against health care professionals. There is,
however, an exception. As originally passed, the exception
authorized lawsuits for “injury” that could have been “prevented or
avoided” had the health care professional acted consistent with the
ordinary standard of care. § 13-64-502, C.R.S. 1988 (repealed
1989).
¶2 Approximately five months after the HCAA’s enactment, our
supreme court decided Lininger v. Eisenbaum, 764 P.2d 1202, 1204
(Colo. 1988). The case recognized a common law negligence action
seeking damages against a doctor who provided the parents with
medical advice that their first child’s eye condition resulting in
blindness was not genetic, yet their second child developed the
same eye condition as his sibling.
¶3 Following Lininger, the General Assembly amended section 13-
64-502(1), effective July 1, 1989, by broadening the statutory bar
against negligence actions to preclude claims for “damage or injury”
1 arising from “genetic counseling and screening” but also expanding
the exception to permit lawsuits involving “damage or injury”
resulting from a “genetic disease or disorder” that could have been
prevented or avoided if the ordinary standard of care had been met.
Ch. 135, sec. 4, § 13-64-502(1), 1989 Colo. Sess. Laws 763.
¶4 Since its enactment, no case has interpreted section 13-64-
502(1). Given the timing of this provision’s amendment in 1989, as
well as the plain language of the statute, it is reasonable to
interpret the provision consistent with Lininger’s holding.
Specifically, we give effect to the term “damage” in the statute to
permit a claim for economic damages for a child’s medical expenses
or other extraordinary expenses resulting from a health care
professional’s alleged negligent genetic counseling or screening.
¶5 In this case, the parents brought an action against medical
professionals alleging that negligent genetic testing and counseling
led them to believe their twins would not be — but were in fact —
affected by a severe medical disorder. The district court dismissed
the parents’ claims under C.R.C.P. 12(b)(5), reasoning that the
lawsuit did not fall under section 13-64-502(1)’s exception. But the
parents’ claims do fall squarely under that exception, so we reverse
2 and reinstate the complaint as to those claims. As to the children’s
claims against the medical professionals, however, we conclude that
the district court properly dismissed them under Lininger. And we
decline to address damages because the issue was not resolved
below. Therefore, we reverse in part, affirm in part, and remand the
case to the district court for further proceedings consistent with
this opinion.
I. Background
¶6 Plaintiffs Secily Maldonado (Maldonado) and John Anthony
Carcanaques (Carcanaques) (collectively the parents) brought this
action on behalf of themselves and on behalf of their twins,
plaintiffs J.A.C. and J.M.C. (collectively the children), who also
asserted claims on behalf of themselves. The complaint alleged that
defendants — who include the Children’s Hospital of Colorado, the
University of Colorado Hospital Authority, Alison Ballard (Ballard),
Melissa Gibbons (Gibbons), and Lisa McCown (McCown)
(collectively, Hospital Defendants) as well as GeneDx, Inc.; GeneDx,
LLC; Katelyn Beattie (Beattie); and Amanda Lindy (Lindy)
(collectively GeneDx Defendants) — negligently misrepresented to
Maldonado that she was not a genetic carrier of Duchenne
3 Muscular Dystrophy (DMD) and that the parents relied on that
information and Maldonado ultimately gave birth to J.A.C. (who has
developed DMD) and J.M.C. (who is a carrier of DMD).
¶7 Based on the allegations in the complaint, DMD is an
inheritable and irreversible genetic disorder that is marked by
progressive muscle degeneration and weakness. The disease is an
X-linked recessive gene disorder that predominantly affects males
(females are usually carriers without displaying symptoms). Due to
its genetic nature, the presence of DMD in a family history
significantly increases the risk of occurrence in offspring,
reinforcing the importance of genetic counseling and testing in
families with known carriers.
¶8 Maldonado has a family history of DMD, and in November
2016, she underwent DMD genetic counseling at Children’s
Hospital in anticipation of starting a family. Ballard, an employee
of Children’s Hospital,1 advised that Maldonaldo undergo genetic
testing. Hospital caregivers submitted Maldonado’s urine sample to
GeneDx Defendants’ lab for testing. GeneDx Defendants sent a
1 The complaint alleged that Children’s Hospital employees are
employees of the University of Colorado Hospital Authority.
4 report signed by Beattie and Lindy to Maldonado’s caregivers in
December 2016 indicating that Maldonado tested negative for the
DMD genetic variant. Hospital Defendants informed Maldonaldo via
a December 29, 2016 letter from McGown and Gibbons that “the
testing has returned with negative results. This means that you are
NOT a carrier of DMD.”2 After receiving the negative DMD gene
report, Maldonado and Carcanaques conceived their son, J.A.C.,
and his twin sister, J.M.C.
¶9 In summer 2022, J.A.C. was unwell and Maldonaldo took him
to Children’s Hospital for treatment. In September 2022, J.A.C.
tested positive for DMD, developing signs and symptoms of being
directly affected by DMD. At the recommendation of Gibbons and
Ballard, Maldonaldo underwent additional genetic testing, and her
specimen was submitted to a different lab. In October 2022, she
tested positive for being a carrier of DMD. J.M.C. was also tested,
and in October 2022, she too tested positive for being a carrier of
the genetic mutation. Plaintiffs’ further investigation following
these results revealed that the genetic testing conducted by GeneDx
2 The text in the letter sent to Maldonado saying “you are NOT a
carrier of DMD” was in bold print.
5 Defendants produced a “false negative,” which is a result indicating
a decreased risk of a genetic condition when the person is in fact
affected.
¶ 10 Plaintiffs brought negligence claims against all defendants and
sought pre- and post-majority extraordinary medical and other
expenses due to their children being adversely affected by DMD
allegedly as the result of false-negative genetic testing. They
asserted that Hospital Defendants failed to (1) “identify the risk of
the presence of the DMD gene in Ms. Maldonado’s DNA”;
(2) “recognize the clear caveat that the absence of a control sample
weakened the veracity of the report”; (3) “order further adequate
testing”; or (4) “properly counsel Ms. Maldonado as to the ongoing
risks of being an obligate DMD carrier notwithstanding her
neuromuscular symptoms.” Plaintiffs also alleged that GeneDx
Defendants “breached their duties of care by failing to detect the
presence of the DMD gene in Ms. Maldonado’s DNA sample, despite
the clear presence of such a gene.”
¶ 11 The children asserted claims for “non-economic damages
resulting from the negligent misdiagnosis of Ms. Maldonado,
including loss of enjoyment of a natural life.”
6 ¶ 12 Hospital Defendants and GeneDx Defendants separately
moved to dismiss plaintiffs’ complaint under C.R.C.P. 12(b)(5).
Defendants argued that plaintiffs failed to state a claim under
section 13-64-502(1), which, among other things, limits civil
liability stemming from genetic counseling or screening. The court
dismissed the action.
¶ 13 On appeal, plaintiffs contend that the district court erred by
(1) ruling that section 13-64-502(1) prohibited the relief sought in
their complaint and (2) precluding plaintiffs from seeking economic
damages for the injuries sustained by the children.
II. Standard of Review
¶ 14 We review de novo a district court’s ruling dismissing a
complaint for failure to state a claim under C.R.C.P. 12(b)(5).
Houser v. CenturyLink, Inc., 2024 COA 96, ¶ 22. We apply the same
standards as the district court, accepting the complaint’s factual
allegations as true and viewing those allegations in the light most
favorable to the plaintiff. Id. But we do not accept as true
conclusory allegations or legal conclusions. Capital One, N.A. v.
Colo. Dep’t of Revenue, 2022 COA 16, ¶ 13. A court may dismiss a
complaint under Rule 12(b)(5) if the factual allegations do not, as a
7 matter of law, support a claim for relief. Froid v. Zacheis, 2021 COA
74, ¶ 17.
¶ 15 Statutory interpretation is a question of law that we review de
novo. Finney v. People, 2014 CO 38, ¶ 12. When interpreting a
statute, we first examine the plain meaning of the statutory
language. Roup v. Com. Rsch., LLC, 2015 CO 38, ¶ 8. “We read
statutory words and phrases in context, and we construe them
according to the rules of grammar and common usage.” Solano v.
Newman, 2024 COA 93M, ¶ 16 (quoting McCoy v. People, 2019 CO
44, ¶ 37). If the language in a statute is clear and unambiguous,
we give effect to its plain meaning and look no further. Brookhart v.
Reaman, 2023 COA 93, ¶ 27.
III. Analysis
A. The HCAA and Lininger
¶ 16 As originally passed in 1988, section 13-64-502 stated:
No physician or other health care professional or health care institution shall be liable to an infant or his personal representative, parents, or next of kin for injury occurring during the course of labor, delivery, or the immediate postdelivery period in a health care institution where such injury was the result of genetic disease or disorder, or other natural causes, and could not have been prevented or avoided
8 by ordinary care of the physician or other health care professional or health care institution.
§ 13-64-502, C.R.S. 1988 (emphasis added); see Ch. 100, sec. 1,
§ 13-64-502, 1988 Colo. Sess. Laws 623 (effective July 1, 1988).
Less than five months after its enactment, on November 26, 1988,
our supreme court announced Lininger. That case recognized that
a parent has a legally cognizable claim at common law for
situations in which parents allege that “but for a physician’s
negligence in either misinforming them or failing to inform them
about the likelihood that their child would be born with a birth
defect or impairment, they would not have conceived,” and “the
child who was subsequently born [had] an impairment.” 764 P.2d
at 1204 (emphasis added). Once referred to as a “wrongful birth”
claim, Lininger directed courts to treat such claims as any other
physician negligence action. Id. at 1205.
¶ 17 The facts in Lininger are similar to this case. The Lininger
parents had a son who had a congenital eye condition that led to
blindness. Id. at 1203. Not wanting another child with blindness,
the parents sought their physicians’ advice about the possibility of a
second child being born blind; the physicians advised them that the
9 son’s eye condition was not hereditary. Id. at 1203-04. The
parents had a second son, who later went blind. Id. at 1204. Both
children were subsequently diagnosed as being afflicted with the
same hereditary form of blindness. Id. The court concluded that
the monetary burden the parents shouldered in treating the second
son’s blindness was similar to that of any other personal injury,
and therefore, the parents should be entitled to recover the
“extraordinary medical and education expenses associated with the
treatment of [the second son’s] blindness.” Id. at 1206-07.
¶ 18 During the next legislative session, the General Assembly
amended section 13-64-502, effective July 1, 1989. Ch. 135, sec. 4,
§ 13-64-502(1), 1989 Colo. Sess. Laws 763. The statute remains
unchanged since the 1989 amendment and states,
No claimant, including an infant or his personal representative, parents, or next of kin, may recover for any damage or injury arising from genetic counseling and screening and prenatal care, or arising from or during the course of labor, delivery, or the period of postnatal care in a health care institution, where such damage or injury was the result of genetic disease or disorder or other natural causes, unless the claimant can establish by a preponderance of the evidence that the damage or injury could have been prevented or avoided by ordinary standard of care of the physician
10 or other health care professional or health care institution.
§ 13-64-502(1) (emphasis added). This amendment altered the
original language by
• adding the word “damage” so both the statutory bar and
exception refer to claims for “damage or injury”;
• expanding the statutory bar to encompass lawsuits “arising
from genetic counseling and screening”;
• clarifying that the statutory bar applies to claims for “damage
or injury” that was “the result of [the] genetic disease or
disorder”; and
• clarifying that the statutory exception allows claims for
“damage or injury” resulting from a genetic disease or disorder
that could have been “prevented or avoided” by the ordinary
standard of care of the health care professional or institution.
B. The District Court Order
¶ 19 According to the district court, the central premise of parents’
claim is that they relied on defendants’ negligent genetic testing and
counseling that Maldonado was not a carrier of DMD, they relied on
that information to assist them in their family planning decisions,
11 and that reliance “ultimately resulted in one of [the] children
possessing the errant gene mutation that produced the symptoms
and effects of DMD.” Although parents acknowledge that a person
with DMD cannot be cured, they argue that having children with
the disease could have been “prevented or avoided by alternative
family planning options, like sterilization and/or adoption.”
¶ 20 But in dismissing the complaint, the district court concluded
the proper question to ask was “not whether the births of the
children could have been prevented or avoided, but whether the
DMD that resulted from gene mutation that ultimately adversely
affected the children could have been prevented or avoided by
health professionals through the exercise of ordinary care.” In
other words, the district court equated the terms “damage or injury”
with “the birth of the child with the DMD disorder,” leading it to the
conclusion that the damage or injury necessarily arose from the
“genetic counseling and screening,” and thus, the lawsuit was
barred by section 13-64-502(1). The district court further
concluded that section 13-64-502(1)’s exception did not apply
because the DMD disorder could not have been prevented or
12 avoided even if defendants had exercised an ordinary standard of
care.
¶ 21 We conclude that this interpretation does not effectuate the
intent of the General Assembly because, as discussed below, it does
not give effect to all the words in the statute.
C. “Damage or Injury”
¶ 22 We begin our analysis with two principles of statutory
construction.
¶ 23 First, we must presume that the General Assembly is aware of
court precedent. Carrera v. People, 2019 CO 83, ¶ 29 (“The
legislature’s actions (and inactions) are significant because when
the legislature amends a statute, it is presumed that it ‘is aware of,
and approves of, case law interpreting that statute.’” (quoting Diehl
v. Weiser, 2019 CO 70, ¶ 25)); see also People v. Swain, 959 P.2d
426, 430-31 (Colo. 1998) (“Under an established rule of statutory
construction, the legislature is presumed, by virtue of its action in
amending a previously construed statute without changing the
portion that was construed, to have accepted and ratified the prior
judicial construction.”). Although the 1989 amendment does not
specifically reference Lininger, the expanded language implicitly
13 recognizes that case’s holding by referring to “genetic counseling
and screening” and adding the word “damage.”
¶ 24 Second, when the same word or phrase is repeated in the
same statutory provision or scheme, unless otherwise indicated by
the General Assembly, we must presume the repeated word or
phrase has the same meaning throughout. People v. Delgado, 2016
COA 174, ¶ 16, aff’d, 2019 CO 82.
¶ 25 Because the 1989 amendment added “damage” as a type of
recovery subject to the statutory bar and exception, a claimant
could base a negligence claim on damage or injury (or both)
sustained from the medical professional. Given that the General
Assembly amended the statute to apply to both “damage” and
“injury,” we must give effect to each. See City & Cnty. Denver v.
Indus. Claim Appeals Off., 2021 COA 146, ¶ 12.
¶ 26 Damages represent a measure of loss or harm that results
from some injury suffered because of an unlawful or negligent act
or omission. See Wilcox v. Clark, 42 P.3d 29, 30 (Colo. App. 2001);
see also Black’s Law Dictionary 488 (12th ed. 2024) (defining
“damages” as “compensation for loss or injury”); Merriam-Webster
14 Dictionary, https://perma.cc/56X9-JEUE (defining “damages” as
“compensation in money imposed by law for loss or injury”).
¶ 27 In the tort context, an injury is often associated with some
hurt or loss sustained. See Black’s Law Dictionary 935 (12th ed.
2024) (defining “injury” as the “violation of another’s legal right, for
which the law provides a remedy”); Merriam-Webster Dictionary,
https://perma.cc/5AB3-X74T (defining “injury” as “hurt, damage,
or loss sustained”).
¶ 28 A damage or injury is but one of the elements to be proven in a
negligence claim based on medical malpractice. See Day v.
Johnson, 255 P.3d 1064, 1068–69 (Colo. 2011) (outlining the
elements of negligence in medical malpractice actions). Like other
types of medical malpractices cases, damage or injury to parents
arising from negligent genetic counseling and screening can include
extraordinary medical expenses and special education expenses
incurred while the child remains their legal dependent.3 See
Lininger, 764 P.2d at 1207. Indeed, Lininger identified these
3 Colorado imposes certain statutory limitations on damages in
medical malpractice cases. See, e.g., §§ 13-64-301 to -302.5, C.R.S. 2024.
15 expenses as types of damages that may be awarded when a
physician provides negligent medical advice to parents seeking to
avoid having a child with a hereditary medical condition. Id. at
1206-07; see also Vitetta v. Corrigan, 240 P.3d 322, 329 (Colo. App.
2009) (allowing damages for life care plan for child requiring twenty-
four-hour care for life); Kinsella v. Farmers Ins. Exch., 826 P.2d 433,
435 (Colo. App. 1992) (parents may recover medical expenses
incurred). And without damage, a negligence claim is not
actionable. See Thompson v. Riveland, 714 P.2d 1338, 1340-41
(Colo. App. 1986) (proof of compensable harm or damages is
necessary for liability for negligence); Nunn v. Mid-Century Ins. Co.,
215 P.3d 1196, 1199 (Colo. App. 2008) (recognizing that “a wrong
without damage . . . is not actionable” (quoting 1 Stuart M. Speiser,
Charles F. Krause & Alfred W. Gans, American Law of Torts § 1:11
(1983))), rev’d on other grounds, 244 P.3d 116 (Colo. 2010).
¶ 29 In other words, the General Assembly’s selected phrase,
“damage or injury,” is broader than the genetic disorder itself. See
Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo.
2008) (Courts “give effect to every word and render none
superfluous because [they] ‘do not presume that the legislature
16 used language idly and with no intent that meaning should
be given to its language.’” (quoting Colo. Water Conservation Bd. v.
Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597
(Colo. 2005))). The district court erred by conflating the type of
medical negligence — here, one involving genetic counseling or
screening — with the separately provable “damage or injury” —
meaning the loss or harm caused by the allegedly substandard
counseling or screening. Surely the label given to the type of
medical negligence cannot determine the scope of the medical
professionals’ liability. A negligent genetic counseling or screening
case is merely a subset of medical negligence, which, in turn, is a
subset of the broader tort of negligence. See Greenberg v. Perkins,
845 P.2d 530, 534 (Colo. 1993); Am. Econ. Ins. Co. v. Schoolcraft,
551 F. Supp. 2d 1235, 1241-42 (D. Colo. 2007) (predicting that the
Colorado Supreme Court would agree that a claim alleging “failure
to perform genetic screening” as part of fertility services is a claim
requiring application of a professional standard of care under
section 13-64-502(1)).
17 D. The Exception
¶ 30 As the parents concede, a health care professional’s exercise of
the ordinary standard of care could not have prevented or avoided
the children’s inheritance of the DMD gene from Maldonado, who is
a carrier of that gene. But this is where the exception comes into
play. A claim is not barred if “the claimant can establish by a
preponderance of the evidence that the damage or injury could have
been prevented or avoided” had the health care professional used
an ordinary standard of care. § 13-64-502(1) (emphasis added).
The parents allege that defendants failed to use an ordinary
standard of care in providing the genetic counseling they sought
that led to their damages, measured by the increase cost to care for
the children’s medical expenses. Unfortunately, the district court’s
limiting construction of the statutory language led it to reject
parents’ claim because, as interpreted by the court, the claimed
injury — the birth of the children with DMD — could not have been
prevented or avoided had the medical professionals used an
ordinary standard of care. But, as Lininger recognized, parents may
be compensated for the birth of a child born with an impairment
18 with monetary damages due to expenses resulting from the
impairment because of a health care professional’s negligence.
¶ 31 Thus, under the exception, a negligence claim may go forward
if “the damage or injury could have been prevented or avoided” by a
health care team’s exercise of the ordinary standard of care. § 13-
64-502(1) (emphasis added). To “avoid” a certain outcome may
encompass efforts to stop the chance of such outcome happening at
all, such as, in this case, by giving reliable advice that would have
“avoided” the pregnancy entirely and, thus, “avoided” the resulting
expenses associated with the care of the children. See Black’s Law
Dictionary 167 (“[A]void means to “render void,” and “prevent”
means to “stop from happening.”). And “prevented” could indicate
that the health care professionals’ negligent advice deprived
Maldonado of her ability to stop (or end) her pregnancies and avert
the expenses that have been incurred and may be incurred in the
future for the DMD-affected children. See Merriam-Webster
Dictionary, https://perma.cc/L8AF-H252 (defining “prevent” as “to
keep from happening”). While “prevented” and “avoided” may be
similar by definition, we must assume the General Assembly did not
idly add words to the statute when it amended it, and therefore, the
19 words must have different (albeit closely related) meanings. See
Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 25.
¶ 32 Because the district court’s interpretation read out the word
“damage,” the court did not fully consider the recoverability of the
various types of damages parents alleged to have resulted from the
health care professionals’ negligence that could have been
“prevented or avoided,” leading to the erroneous dismissal of
parents’ claims. As detailed below, because parents’ claims fall
under section 13-64-502(1)’s exception, we turn to whether parents
adequately pled factual allegations to withstand dismissal under
C.R.C.P. 12(b)(5).
E. Plaintiffs Have Adequately Pled a Claim to Withstand Dismissal Under Rule 12(b)(5)
¶ 33 “Medical malpractice is a particular type of negligence action.”
Greenberg, 845 P.2d at 534. The plaintiff must prove the following
elements to establish negligence for a medical malpractice claim:
(1) the defendant had a legal duty of care; (2) the defendant
breached that duty; (3) the plaintiff was injured; and (4) the
defendant’s breach caused the plaintiff’s injury. Day, 255 P.3d at
1068–69.
20 ¶ 34 The parents have stated valid medical negligence claims based
on defendants’ alleged failure to provide accurate information to
properly inform their family planning decision. The allegations in
the complaint, if accepted as true, would entitle them to relief.
¶ 35 The complaint included allegations that GeneDx Defendants
owed parents a duty to provide laboratory studies, reports, record
keeping, and sample management “in accord with the state of the
art at the time” and that a physician-patient relationship existed
between Maldonado and Hospital Defendants. And medical
professionals recommended that Maldonaldo seek genetic
counseling because she wanted to “avoid” having children if she
could pass on the DMD genetic mutation.
¶ 36 As to the breach of those duties, parents alleged that
(1) whether via a “mix-up of samples,” “lab error,” or “result reading
error,” GeneDx Defendants reported a false-negative result of
Maldonado’s genetic sample; and (2) Hospital Defendants neither
warned Maldonado of the test’s potential to report a false negative
nor conducted testing of elevated levels of creatine kinase, a marker
of ongoing muscle injury. Due to these breaches, Maldonado
conceived and birthed the children, which led to plaintiffs incurring
21 extraordinary medical and education expenses as a result of J.M.C.
developing DMD and J.A.C. being a carrier of DMD. Parents claim
damages as it relates to their expenses for medical support,
physical limitations, respiratory complications, cardiovascular
issues, reduced life expectancy, and lost future earning capacity
from the children’s DMD diagnosis.
¶ 37 In other words, parents seek “damages” in the form of
extraordinary medical expenses and other costs incurred from the
defendants’ negligence “in either misinforming them or failing to
inform them about the likelihood that their child would be born
with a birth defect or impairment” that could have been prevented
or avoided because parents would not have conceived. Lininger,
764 P.2d at 1204; see also Dotson v. Bernstein, 207 P.3d 911, 914
(Colo. App. 2009) (recognizing that “because damages were a
necessary component of the viability of the [negligence] claim,”
Lininger identified “at least some consequential damages that could
be proved and recovered”), abrogated on other grounds by Semler v.
Hellerstein, 2016 COA 143.
¶ 38 Thus, the parents adequately pled a medical negligence claim
against defendants.
22 F. The Children’s Claims
¶ 39 The district court found, plaintiffs concede, and we agree that
the children’s “loss of enjoyment of a natural life” claim is barred by
Lininger. Although Lininger recognized that parents may be
compensated for damages due to a physician’s negligent advice or
counseling when a child is born with an impairment, the court
concluded that “wrongful life” — i.e., a child’s claim — is not a
cognizable injury. The court reasoned that, “however impaired [the
child may be] and regardless of any attendant expenses, [it] cannot
rationally be said to be a detriment to [the]m when measured
against the alternative of [their] not having existed at all.” Lininger,
764 P.2d at 1212.
¶ 40 On appeal, it is unclear whether plaintiffs have abandoned
their claims relating to the children. Although plaintiffs contend
that the children are entitled to pre-majority damages, they skip
over whether the children possess cognizable claims upon which to
recover those damages. To the extent plaintiffs did not abandon the
children’s separate claims for relief, we conclude that those claims
23 are barred by Lininger. And plaintiffs do not cite any other
statutory provision as a foundation for their claims.4
¶ 41 We therefore affirm the court’s dismissal of the children’s
claims.
G. The Parents’ Post-Majority Damages
¶ 42 Because the district court held that section 13-64-502(1) bars
plaintiffs’ claims, it did not rule on whether parents can recover the
children’s post-majority economic damages. Parents urge us to
decide this issue in light of the supreme court’s recent opinion in
Rudnicki v. Bianco, 2021 CO 80, ¶ 2, which held, in part, that in
tort cases involving an injured unemancipated minor child, either
the child or their parents may recover the child’s pre-majority
medical expenses.
¶ 43 In Dotson, a division of this court declined to address the
plaintiff’s request for consequential damages after concluding that
her complaint complied with C.R.C.P. 8. In that case, the plaintiff
had a similar Lininger claim. The division declined to address
4 Even if we agreed with plaintiffs’ interpretation of section 13-64-
502(1), C.R.S. 2024, we question whether J.M.C. would have a cognizable claim, as she is only a carrier of the DMD gene.
24 damages, though, because the litigation was in its early stage, and
on appeal, the “plaintiff was merely required to set forth a legally
cognizable injury causing harm for which she was entitled to some
relief.” Dotson, 207 P.3d at 914-15.
¶ 44 Also, “[w]e do not consider ‘arguments never presented to,
considered or ruled upon by’ the district court” and therefore,
decline to address this issue further. Core-Mark Midcontinent Inc. v.
Sonitrol Corp., 2016 COA 22, ¶ 24 (quoting Est. of Stevenson v.
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)).
IV. Conclusion
¶ 45 The portion of the district court’s order dismissing the parents’
claims is reversed, and those claims are reinstated. But the district
court’s dismissal of the children’s claims is affirmed. And we
decline to address the parents’ contentions related to damages. We
remand the case to the district court for further proceedings.
JUDGE FOX and JUDGE SCHOCK concur.