Gresser v. Banner Health

543 P.3d 1059

2023 COA 108

2023 COA 108

Chance GRESSER, individually and as parent, natural guardian, next of friend and on behalf of his daughter, C.G., and Erin Gresser, individually and as parent, natural guardian, next of friend and on behalf of her daughter, C.G., Plaintiffs-Appellees,

v.BANNER HEALTH, d/b/a North Colorado Medical Center, Defendant-Appellant.

Court of Appeals No. 22CA1502

Colorado Court of Appeals, Div. VI.

Announced November 16, 2023

Weld County District Court No, 19CV30976, Honorable Todd Taylor, Judge

Baehus & Sehanker, LLC, Darin L. Schanker, J. Howard Thigpen, Melanie Sulkin, Denver, Colorado; Barrios Kingsdorf & Casteix, LLP, Zachary Wool, New Orleans, Louisiana; Pendley, Baudin & Coffin, LLP, Jessica Perez, Plaquemine, Louisiana, for Plaintiffs-Appellees

Hall Booth Smith, P.C., Elizabeth Moran, Greenwood Village, Colorado; Mauro Lilling Naparty LLP, Richard J. Montes, Woodbury, New York, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 The Colorado General Assembly enacted the Health Care Availability Act (HCAA) four decades ago to "contain[ ] the significantly increasing costs of malpractice insurance for medical care institutions and licensed medical care professionals" and "in recognition of the exodus of professionals from health-care practice or from certain portions or specialties thereof." § 13-64-102(1), C.R.S. 2023. Among other provisions, the HCAA caps at $1 million the tort damages awardable against all defendants for a course of care provided to a patient by a health care professional or a health care institution. § 13-64-302(1)(b), C.R.S. 2023. The HCAA provides limited circumstances in which a trial court may lift the cap to award "the present value of additional past and future economic damages only." Id.

¶ 2 However, once a court makes the appropriate findings and lifts the cap, the HCAA does not specify how the court must determine the amount of such excess damages. No prior Colorado ease has addressed this issue. The General Assembly’s silence could mean that, upon lifting the cap, the court possesses the discretion to reject the jury’s award and independently determine the amount of such additional damages. Alternatively, it could mean that, if the court decides to exceed the cap, it must enter a judgment for economic damages in the same amount as the jury’s calculation of such damages.

¶ 3 In this case, defendant, Banner Health, d/b/a North Colorado Medical Center, appeals the judgment entered in favor of plaintiffs, Chance and Erin Gresser, following a jury trial. The Gressers, individually and on behalf of their minor daughter, C.G., asserted a medical negligence claim against Banner Health premised on the alleged failure of its nursing staff to timely recognize and report to C.G.’s treating physicians that C.G. was exhibiting signs of sepsis. The jury found in favor of the Gressers, and the court entered judgment in their favor in the amount of $39,845,196.83.

¶ 4 After the jury rendered its verdict, the trial court determined it was appropriate to lift the cap. The trial court concluded that its application of the cap was "binary": it was required either to impose the $1 million cap or enter a judgment in the amount that the jury had calculated for past and future economic damages. It chose the latter option and entered the full amount the jury had awarded.

[1] ¶ 5 We disagree with the court’s reading of the HCAA. We hold that, after making the necessary findings to exceed the statutory cap, a trial court may, but is not required to, award additional damages in the amount that the jury determined.

[2] ¶ 6 But the court’s discretion is not limitless. To determine the scope of that discretion, we look to the case law governing judicial review of jury damages awards. Under that case law, a court possesses the authority to set aside a jury’s award of damages if the award was "grossly and manifestly excessive." Bohlender v. Oster, 165 Colo. 164, 168, 439 P.2d 999, 1001 (1968). Although the trial court erred by characterizing its available options as "binary," it undertook the correct analysis before adopting the jury’s calculation of additional past and future economic damages. Because we also reject Banner Health’s other claims of error, we affirm.

I. Background

¶ 7 C.G. was born at Banner Health. Late on the second day of her life, C.G. was transferred to the neonatal intensive care unit (NICU), where she received antibiotics to treat a possible infection. The following morning, lab results confirmed that C.G. had an E. coli infection. By that time, C.G. had developed sepsis. As a result of the sepsis, she suffered irreversible neurological injuries, including cerebral palsy and cognitive and developmental delays.

¶ 8 The Gressers alleged that nurses employed by Banner Health breached their duty of care by failing to timely notify C.G.’s physicians that C.G. was exhibiting signs of sepsis, and that such failure resulted in delayed treatment and caused C.G.’s injuries.

¶ 9 The jury found that Banner Health was negligent and that its negligence was the proximate cause of C.G.’s injuries. The jury awarded the Gressers damages totaling $27,647,274.23, which included past and future medical and other health care expenses to 2075, as well as lost future wages from 2038 to 2070. The court entered a total judgment of $39,845,196.83, consisting of the jury’s award and pre- and post-filing interest.

II. Analysis

¶ 10 Banner Health contends that the court erred by (1) misinterpreting and misapplying the HCAA’s statutory cap for past and future economic damages; (2) allowing an expert witness to testify outside the scope of his qualifications to establish causation; (3) precluding Banner Health’s economist from providing opinion testimony regarding the present value of C.G.’s future life care plan assuming a life expectancy of fifty-eight; and (4) permitting the Gressers’ counsel to insinuate that Banner Health’s attorneys had colluded with Banner Health’s witnesses to fabricate testimony. We agree, in part, with Banner Health’s first argument but hold that the court did not err by awarding the Gressers past and future economic damages in the amount the jury found. We disagree with Banner Health’s second, third, and fourth arguments.

A. The Damages Cap in the HCAA

¶ 11 The HCAA places an additional burden on plaintiffs seeking to recover more than $1 million from all defendants in any civil action for damages in tort brought against a health care professional or a health care institution. Even if such plaintiffs prove their damages to a jury, section 13-64-302(1)(b) provides that they also must prove to the court good cause for an award of past and future economic damages in excess of the $1 million cap. The court cannot award damages that surpass the cap unless, "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." § 13-64-302(1)(b).

[3] ¶ 12 The plaintiff bears the burden of establishing both good cause, which means a "legally sufficient reason," and unfairness, meaning "marked by injustice, partiality, or deception." Wallbank v. Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006) (first quoting Black’s Law Dictionary 235 (8th ed. 2004); and then quoting Webster’s Third New International Dictionary 2494 (1986)).

¶ 13 Banner Health contends that the court misinterpreted section 13-64-302(1)(b) to permit only a binary choice between enforcing the statutory cap or awarding the full amount that the jury determined. Because the court "felt constrained by a binary choice," Banner Health argues, the court did not properly consider the totality of the circumstances in its good cause and unfairness analysis. We conclude that the court properly applied the good cause and unfairness analysis when deciding to lift the cap and that, although we disagree with its characterization of the scope of its discretion to determine the amount of additional past and future economic damages, it made the necessary findings before entering the jury’s award.

1. The Court Did Not Abuse Its Discretion in Deciding to Lift the Cap

[4, 5] ¶ 14 Banner Health alleges five errors in the court’s application of the good cause and unfairness standard in section 13-64-302(1)(b). "In making findings as to ‘good cause’ and ‘unfairness,’" trial courts must consider the "totality of circumstances." Vitetta v. Corrigan, 240 P.3d 322, 329 (Colo. App. 2009). We review the court’s determination for an abuse of discretion. Wallbank, 140 P.3d at 179.

[6] ¶ 15 First, we disagree with Banner Health’s contention that the court "failed to consider and balance any relevant factors in determining good cause and unfairness." Banner Health erroneously asserts that the court only considered the sufficiency of the evidence to support the jury’s verdict. Rather, as the Gressers explain, the court also weighed the type and permanency of C.G.’s injuries, her continuous need for intensive and expensive therapies, her life expectancy, and that her future medical expenses would exceed $1 million even if she were fully covered by Medicaid.

¶ 16 Specifically, in determining that the Gressers had established good cause for exceeding the cap, and that enforcing the cap would be unfair, the court pointed to the evidence establishing that C.G. "suffered severe, permanent neurological injuries, a number of which she will never be able to overcome, and those injuries that she can learn to overcome will require [her] to be engaged in intensive, and expensive, therapies for much, if not all, of her life." Further, the court noted that "$1 million would not even compensate the Gressers for C.G.’s past medical expenses."

¶ 17 The court also found that the Gressers presented "substantial, and largely unchallenged, evidence" of the cost of the future care C.G. would require to "improve her quality of life"...