Rudnicki v. Bianco

542 P.3d 1198

2023 COA 103

2023 COA 103

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.

Court of Appeals No. 22CA1246

Colorado Court of Appeals, Div. VII.

Announced November 2, 2023

El Paso County District Court No. 14CV34013, Honorable David A. Gilbert, Judge

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 Defendant-Appellant

Opinion by JUDGE BROWN

¶ 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, 501 P.3d 776; and (2) resulting in a total award in excess of the $1 million damages limitation under the Health Care Availability Act (HCAA), section 13-64-302(1)(b), C.R.S. 2023.

¶ 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 date of Alexander’s birth. Based on the plain language of sections 13-21-101(1) and 13-80-108(1), C.R.S. 2023, we conclude that Alexander is entitled to collect prefiling, prejudgment interest on his pre-majority medical expenses from the date his cause of action accrued, which was the date of his birth.

¶ 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, 519 P.3d 1093 (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 § 13-64-302(1)(b). Prefiling, prejudgment interest on Alexander’s pre-majority medical expenses is a part of his past and future economic damages. And the district court found the requisite good cause and unfairness to award past and future economic damages exceeding the HCAA damages limitation. Thus, we conclude that Alexander is entitled to prefiling, prejudgment interest on his pre-majority medical expenses from the date of his birth, without limitation.

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. Bianco 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 § 13-80-102.5(1), (3)(d)(II), C.R.S. 2023.

¶ 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 pre-majority medical expenses, see Pressey v. Child’s Hosp. Colo., 2017 COA 28, ¶ 26, 488 P.3d 151, 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 section 13-64-302(1)(b) of the HCAA. But the court found that there was good cause to exceed the damages cap. It reasoned that applying the cap in this case would be "manifestly unfair" to Alexander given the substantial evidence presented at trial regarding his life-long need for "constant supervision" and "considerable assistance with performing the basic tasks of living that most of us take for granted," and his inability to contribute in any meaningful way to the costs of such care. The court concluded that the jury’s findings were the proper measure of the fair, reasonable, and necessary damages Alexander incurred and declined to further reduce the award.

¶ 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 section 13-64-302(2). Because Alexander’s damages award exceeded the $1 million cap, Dr. Bianco argued that no prefiling, prejudgment interest should be awarded.

¶ 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 prefiling 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, 2019 WL 2385683, (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 court 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 profiling, 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 bora, as well as post-filing, prejudgment interest calculated from the date the complaint was filed. The court...