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.
No. 22CA1246
COLORADO COURT OF APPEALS
November 2, 2023
2023COA103
Honorable David A. Gilbert, Judge
El Paso County District Court No. 14CV34013
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
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),
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 Defendаnt-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),
¶ 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 common law rule precluding such recovery, interest should accrue from the date of the supreme court‘s ruling rather than from the
¶ 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
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. Biancо 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
¶ 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 prе-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 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
¶ 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), citing
¶ 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 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 cоurt 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 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 рrefiling, 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 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
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 medicаl expenses, calculated from his date of birth. We first determine the date from which the prefiling, prejudgment interest should be calculated under
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 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, reasоnably 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.
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
¶ 21 The legislature has defined when a personal injury action accrues in
¶ 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 reasonable diligence. See
¶ 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
¶ 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
¶ 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).
¶ 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
¶ 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 рlaintiff 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. Eckhardt, 35 Colo. App. 155, 160-61, 532 P.2d 54, 57 (1974))). But that unremarkable
¶ 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 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
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
¶ 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 entitlеd to that category of damages until Rudnicki — an award of such interest is consistent with the compensatory purpose of
¶ 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 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] reliеd.”3 In essence, Dr.
¶ 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.
¶ 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 lаnguage 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
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.”
[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.
¶ 39 Thus, prefiling, prejudgment interest is an element of damages subject to the $1 million damages cap. See
¶ 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 . . . .
¶ 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 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.
¶ 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 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 limitation, provided the other requirements of the statute are met.
¶ 45 We are not persuaded to reach a different result by the statute‘s legislative history. Of course, because thе 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
¶ 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 without addressing whether good cause existed for еxceeding 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
¶ 49 We are similarly unpersuaded by Dr. Bianco‘s сitation 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, prejudgment interest that she otherwise would have been entitled to but for the noneconomic damages cap. Id. The division rejected thе 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
¶ 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
¶ 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
¶ 52 We recognize that adhering to the $1 million damage limitation furthers the legislature‘s stated policy reasons for enacting the HCAA. See
¶ 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 limitation and determined that it would be “manifestly unfair” to apply the limitation in this cаse. 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 changеd 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 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.