(1) (a) All damages accruing under
section 13-21-202 shall be sued for and recovered by the same parties and in the
same manner as provided in section 13-21-201, and in every such action the jury may
give such damages as they may deem fair and just, with reference to the necessary
injury resulting from such death, including damages for noneconomic loss or injury
as defined in section 13-21-102.5 and subject to the limitations of this section and
including within noneconomic loss or injury damages for grief, loss of
companionship, pain and suffering, and emotional stress, to the surviving parties
who may be entitled to sue; and also having regard to the mitigating or aggravating
circumstances attending any such wrongful act, neglect, or default; except that, if
the decedent left neither a widow, a widower, minor children, nor a dependent
father or mother, the damages recoverable in any such action shall not exceed the
sum of two million one hundred twenty-five thousand dollars in any wrongful death
action or binding arbitration filed on or after January 1, 2025, and before January 1,
2026, or any wrongful death claim that accrues on or after January 1, 2025, in which
damages for derivative or direct noneconomic loss or injury may be awarded, unless
the wrongful act, neglect, or default causing death constitutes a felonious killing,
as defined in section 15-11-803 (1)(b), and as determined in the manner described in
section 15-11-803 (7), in which case there shall be no limitation on the damages for
noneconomic loss or injury recoverable in such action. No action shall be brought
and no recovery shall be had under both section 13-21-201 and section 13-21-202,
and in all cases the plaintiff is required to elect under which section he or she will
proceed. There shall be only one civil action under this part 2 for recovery of
damages for the wrongful death of any one decedent. Notwithstanding anything in
this section or in section 13-21-102.5 to the contrary, there shall be no recovery
under this part 2 for noneconomic loss or injury in excess of two million one
hundred twenty-five thousand dollars in any wrongful death action or binding
arbitration filed on or after January 1, 2025, and before January 1, 2026, or any
wrongful death claim that accrues on or after January 1, 2025, in which damages for
derivative or direct noneconomic loss or injury may be awarded, unless the wrongful
act, neglect, or default causing death constitutes a felonious killing, as defined in
section 15-11-803 (1)(b), and as determined in the manner described in section 15-11-803 (7). Damages arising from claims brought against a public entity or public
employee, as defined in section 24-10-103, shall be controlled by the damage
limitations set forth in section 24-10-114.
(b) Notwithstanding the limitation set forth in subsection (1)(a) of this section
or in section 13-64-302 (1):
(I) Effective January 1, 2025, the total amount recoverable for derivative or
direct noneconomic loss or injury, as defined in section 13-64-302 (1)(a)(I) and
(1)(a)(II), in any civil action or binding arbitration for damages in tort brought against
a health-care professional, as defined in section 13-64-202 (4), or a health-care
institution, as defined in section 13-64-202 (3), based on a claim of wrongful death
of a patient shall not exceed five hundred fifty-five thousand dollars, which amount
applies to acts or omissions occurring on or after January 1, 2025, but before
January 1, 2026.
(II) Effective January 1, 2026, the total amount recoverable for derivative or
direct noneconomic loss or injury, as defined in section 13-64-302 (1)(a)(I) and
(1)(a)(II), in any civil action or binding arbitration for damages in tort brought against
a health-care professional, as defined in section 13-64-202 (4), or a health-care
institution, as defined in section 13-64-202 (3), based on a claim of wrongful death
of a patient shall not exceed eight hundred ten thousand dollars, which amount
applies to acts or omissions occurring on or after January 1, 2026, but before
January 1, 2027.
(III) Effective January 1, 2027, the total amount recoverable for derivative or
direct noneconomic loss or injury, as defined in section 13-64-302 (1)(a)(I) and
(1)(a)(II), in any civil action or binding arbitration for damages in tort brought against
a health-care professional, as defined in section 13-64-202 (4), or a health-care
institution, as defined in section 13-64-202 (3), based on a claim of wrongful death
of a patient shall not exceed one million sixty-five thousand dollars, which amount
applies to acts or omissions occurring on or after January 1, 2027, but before
January 1, 2028.
(IV) Effective January 1, 2028, the total amount recoverable for derivative or
direct noneconomic loss or injury, as defined in section 13-64-302 (1)(a)(I) and
(1)(a)(II), in any civil action or binding arbitration for damages in tort brought against
a health-care professional, as defined in section 13-64-202 (4), or a health-care
institution, as defined in section 13-64-202 (3), based on a claim of wrongful death
of a patient shall not exceed one million three hundred twenty thousand dollars,
which amount applies to acts or omissions occurring on or after January 1, 2028, but
before January 1, 2029.
(V) Effective January 1, 2029, the total amount recoverable for derivative or
direct noneconomic loss or injury, as defined in section 13-64-302 (1)(a)(I) and
(1)(a)(II), in any civil action or binding arbitration for damages in tort brought against
a health-care professional, as defined in section 13-64-202 (4), or a health-care
institution, as defined in section 13-64-202 (3), based on a claim of wrongful death
of a patient shall not exceed one million five hundred seventy-five thousand dollars,
which amount applies to acts or omissions occurring on or after January 1, 2029, but
before January 1, 2030.
(VI) Effective January 1, 2030, the limitation on damages specified in
subsection (1)(b)(V) of this section shall be adjusted in accordance with section 13-21-203.7 (4).
(VII) The limitations of subsection (1)(b)(I) of this section are not applicable to
a health- care professional who is a public employee under the Colorado
Governmental Immunity Act and are not applicable to a certified health-care
institution that is a public entity under the Colorado Governmental Immunity Act.
(2) This section shall apply to a cause of action based on a wrongful act,
neglect, or default occurring on or after July 1, 1969. A cause of action based on a
wrongful act, neglect, or default occurring prior to July 1, 1969, shall be governed
by the law in force and effect at the time of such wrongful act, neglect, or default.
(3) (a) In all actions brought under section 13-21-201 or 13-21-202 in which
damages are assessed by the trier of fact, and the death complained of is attended
by circumstances of fraud, malice, or willful and wanton conduct, the trier of fact, in
addition to the actual damages, may award reasonable exemplary damages. The
amount of such reasonable exemplary damages shall not exceed an amount that is
equal to the amount of the actual damages awarded to the injured party.
(b) For purposes of this subsection (3), willful and wanton conduct shall
have the same meaning as set forth in section 13-21-102 (1)(b).
(c) (I) A claim for exemplary damages in an action governed by this section
may not be included in any initial claim for relief. A claim for exemplary damages in
an action governed by this section shall be allowed by amendment to the pleadings
only after the passage of sixty days following the exchange of initial disclosures
pursuant to rule 26 of the Colorado rules of civil procedure and the plaintiff
establishes prima facie proof of a triable issue. After the plaintiff establishes the
existence of a triable issue of exemplary damages, the court may, in its discretion,
allow additional discovery on the issue of exemplary damages as the court deems
appropriate.
(II) A claim for exemplary damages in an action governed by this section
shall not be time barred by the applicable provisions of law for the commencement
of actions, so long as:
(A) The claim for exemplary damages arises, pursuant to paragraph (a) of
this subsection (3), from the claim in such action that is brought under section 13-21-201 or 13-21-202; and
(B) The claim in such action that is brought under section 13-21-201 or 13-21-202 is not time barred.
(III) The assertion of a claim for exemplary damages in an action governed by
this section shall not be rendered ineffective solely because the assertion was
made after the applicable deadline contained in the court's case management
order, so long as the plaintiff establishes that he or she did not discover, and could
not have reasonably discovered prior to such deadline, the grounds for asserting
the exemplary damages claim.
(4) Notwithstanding the provisions of subsection (3) of this section, the court
may reduce or disallow the award of exemplary damages to the extent that:
(a) The deterrent effect of the damages has been accomplished; or
(b) The conduct that resulted in the award has ceased; or
(c) The purpose of such damages has otherwise been served.
(5) Notwithstanding the provisions of subsection (3) of this section, the court
may increase any award of exemplary damages to a sum not to exceed three times
the amount of actual damages, if it is shown that:
(a) The defendant has continued the behavior or repeated the action that is
the subject of the claim against the defendant in a willful and wanton manner
against another person or persons during the pendency of the case; or
(b) The defendant has acted in a willful and wanton manner during the
pendency of the action in a manner that has further aggravated the damages of the
plaintiff when the defendant knew or should have known such action would
produce aggravation.
(6) The provisions of this section shall not apply to a peace officer, as
described in section 16-2.5-101, C.R.S., or to any firefighter, as defined in section 18-3-201 (1.5), C.R.S., for claims arising out of injuries sustained from an act or omission
of the peace officer or firefighter acting in the performance of his or her duties and
within the scope of his or her employment.
(7) Nothing in this section shall be construed to alter or amend the provisions
of section 13-64-302.5 or the provisions of part 1 of article 10 of title 24, C.R.S.