2022 COA 87
Colo. Ct. App.2022Background
- Elective back surgery in Aug 2015 led to a major intraoperative iliac vein injury, massive blood loss, prolonged ICU stay, multiple complications, and eventual death of plaintiff’s decedent.
- Hospital team used EVAR stents procured from another facility after in‑house stents proved too small; there was evidence of delay and disputed adequacy/timing of blood product delivery/MTP response.
- After a 22‑day trial the jury allocated fault (Rauzzino 45%, Ehrichs 40%, Hospital 15%) and awarded $9,292,887 in economic damages (≈$6M past medical, $2.6M future medical, lost earnings components).
- Trial court said it would apply the HCAA $1 million cap but later found "good cause" to exceed the cap, entered final judgment (including prefiling interest) for about $15M, and delayed entry of judgment ~10 months.
- On appeal the Court of Appeals: affirmed denial of directed verdicts and most jury instructions; held $456,948 of past medical expenses lacked evidentiary support and must be deducted; found the trial court abused discretion by (1) relying on an unsupported assumption that plaintiff remained liable to repay third‑party payers (collateral‑source/subrogation issue) when deciding to exceed the HCAA cap and (2) failing to enter judgment nunc pro tunc to verdict date — remanded for re‑assessment and entry of judgment nunc pro tunc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to submit negligence claims (directed verdicts) | Evidence (experts, X‑rays, testimony about A1C/risk, blood‑bank/stent issues) supported jury questions on surgeon and hospital negligence | Defendants argued evidence was insufficient / contradicted by experts and standards | Court: Denied directed verdicts; reasonable jury could find breaches as to surgeons and hospital (triggering damages findings) |
| Jury instructions (physical impairment category, thin‑skull, negligence per se) | Physical impairment properly considered; thin‑skull appropriate; negligence per se supported by regs | Defendants claimed separate physical impairment instruction and negligence per se were erroneous and prejudicial | Court: Instructions largely proper; separate physical impairment label was error but harmless (jury awarded $0 noneconomic); thin‑skull and negligence‑per‑se not reversible error |
| Evidentiary support for past medical expenses ($6M vs $5.543M) | Scholle relied on admitted Exhibit 486 and testimony tying amounts to trial record | Defendants argued the admitted exhibit totaled only $5,543,152 and award exceeded evidence | Held: Record shows the admitted exhibit supported $5,543,151.74; jury award reduced by ~$456,948 to conform to admitted evidence |
| Application of HCAA cap, collateral‑source/subrogation, prefiling/postjudgment interest, and nunc pro tunc entry of judgment | Scholle argued good cause/unfairness justified exceeding cap; contract exception to collateral source prevents reducing verdict for amounts paid under contract | Defendants argued court should (1) account for collateral sources/subrogation (plaintiff would not owe third parties), (2) not include prefiling interest beyond cap, and (3) enter judgment nunc pro tunc to verdict to avoid excess interest | Held: Court may include prefiling interest in damages subject to HCAA cap/exceptions; but trial court abused discretion by relying on unsupported assumption that plaintiff owed past medical debts when deciding to exceed cap — remand for reassessment excluding that factor; court also abused discretion by not entering judgment nunc pro tunc — direction to reenter judgment effective as of verdict date |
Key Cases Cited
- Day v. Johnson, 255 P.3d 1064 (Colo. 2011) (standard for proving breach in medical‑malpractice cases)
- Pringle v. Valdez, 171 P.3d 624 (Colo. 2007) (physical impairment/disfigurement as noneconomic loss under HCAA)
- Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681 (Colo. 1998) (directed‑verdict/nullification standard)
- Gossard v. Watson, 221 P.2d 353 (Colo. 1950) (directed verdict principles — no evidence to support verdict)
- Wallbank v. Rothenberg, 140 P.3d 177 (Colo. App. 2006) (interpreting HCAA good‑cause/unfairness factors)
- Hill v. United States, 81 F.3d 118 (10th Cir. 1996) (HCAA purposes and collateral‑source considerations)
- State Farm Mut. Auto. Ins. Co. v. Pfeiffer, 955 P.2d 1008 (Colo. 1998) (thin‑skull/eggshell plaintiff instruction principles)
- Schafer v. Hoffman, 831 P.2d 897 (Colo. 1992) (tortfeasor takes victim as found — eggshell plaintiff rule)