(1) (a) As used in this section:
(I) "Derivative noneconomic loss or injury" means noneconomic loss or injury to persons other than the person suffering the direct or primary loss or injury. "Derivative noneconomic loss or injury" does not include punitive or exemplary damages.
(II) (A) "Direct noneconomic loss or injury" means nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, physical impairment or disfigurement, and impairment of the quality of life. "Direct noneconomic loss or injury" does not include punitive or exemplary damages.
(B) Nothing in this section shall be construed to prohibit a recovery for economic damages, whether past or future, resulting from physical impairment or disfigurement.
(b) The total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional, as defined in section 13-64-202, or a health care institution, as defined in section 13-64-202, or as a result of binding arbitration, whether past damages, future damages, or a combination of both, shall not exceed one million dollars, present value per patient, including any claim for derivative noneconomic loss or injury, of which not more than two hundred fifty thousand dollars, present value per patient, including any derivative claim, shall be attributable to direct or derivative noneconomic loss or injury; except that, if, 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. The limitations 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 which is a public entity under the "Colorado Governmental Immunity Act". For purposes of this section, "present value" has the same meaning as that set forth in section 13-64-202 (7). The existence of the limitations and exceptions thereto provided in this section shall not be disclosed to a jury.
(c) Effective July 1, 2003, the damages limitation of two hundred fifty thousand dollars described in paragraph (b) of this subsection (1) shall be increased to three hundred thousand dollars, which increased amount shall apply to acts or omissions occurring on or after said date. It is the intent of the general assembly that the increase reflect an adjustment for inflation to the damages limitation.
(2) In any civil action described in subsection (1) of this section, prejudgment interest awarded pursuant to section 13-21-101 that accrues during the time period beginning on the date the action accrued and ending on the date of filing of the civil action is deemed to be a part of the damages awarded in the action for the purposes of this section and is included within each of the limitations on liability that are established pursuant to subsection (1) of this section.
Source: L. 88: Entire article added, p. 619, 1, effective July 1. L. 95: Entire section amended, p. 317, 1, effective July 1. L. 2003: (1) amended, p. 1788, 4, effective July 1. L. 2004: (1)(a)(I), (1)(a)(II)(A), and (1)(b) amended, p. 501, 2, effective January 1, 2005.
Cross references: (1) For the "Colorado Governmental Immunity Act", see article 10 of title 24.
(2) For the legislative declaration contained in the 2004 act amending subsections (1)(a)(I), (1)(a)(II)(A), and (1)(b), see section 1 of chapter 165, Session Laws of Colorado 2004.
Law reviews. For article, "Health Care Litigation in Colorado: A Survey of Recent Decisions", see 30 Colo. Law. 91 (Aug. 2001).
Constitutional. The provisions of this act and the damage limitations of this section do not violate the equal protection clause. Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo. 1993).
Since there is no constitutional right to a civil jury trial, the Health Care Availability Act (HCAA) damage cap does not impermissibly infringe on the right to a jury trial. Garhart v. Columbia/HealthONE, L.L.C., 95 P.3d 571 (Colo. 2004).
The HCAA damage cap does not violate separation of powers. The cap does not interfere with the remittur authority of the courts. The court still has the authority to reduce the award by remittur. The HCAA damage cap does not infringe on the court's rule-making authority. Since the damage cap involves a substantive exercise of the general assembly's power to define and limit a cause of action, there is no infringement on court rules that relate to damages and jury awards. Garhart v. Columbia/HealthONE, L.L.C., 95 P.3d 571 (Colo. 2004).
The limitations of this section apply to any professional corporation or entity regardless of whether the injury was caused by a licensed health care professional or an unlicensed member of the staff. Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo. 1993).
Liability limitation can be applied to employer of licensed pharmacist who committed negligence that led to injury. Although employer was not a licensed health care professional within the literal language of the statute, as it was neither a licensed person nor a professional corporation or professional entity comprised of licensed persons, had the licensed pharmacist who worked for employer been named as defendant, she or he would have come within the definition of a health care professional, and the liability limitation would have applied to that individual. In the context of this case, liability arose strictly from defendant's capacity as the employer of a licensed professional who committed a negligent act. Accordingly, the limitations of this section apply. Price v. Walgreen Co., 322 F. Supp. 2d 1179 (D. Colo. 2004).
Prejudgment interest is not included in the damage cap provided in this section. Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo. 1993) (decided prior to 1995 amendment).
Prejudgment interest is subject to statutory damages cap. Dupont v. Preston, 9 P.3d 1193 (Colo. App. 2000), aff'd on other grounds, 35 P.3d 433 (Colo. 2001).
Under 13-21-101, prejudgment interest must be calculated based on the amount awarded by the final judgment, regardless of the jury's determination. Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009).
The HCAA creates a limited exception to the interest formula regarding the accumulation of prefiling and prejudgment interest, which formula is created in 13-21-101. Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009).
Subsection (2) includes prefiling interest, which begins when the action has accrued and ends when the action is filed, but not prejudgment interest within the $250,000 cap on noneconomic damages. Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009).
Noneconomic damages for physical impairment and disfigurement are not included in the definition of noneconomic loss contained in this section. Preston v. Dupont, 35 P.3d 433 (Colo. 2001).
Provisions of the act unambiguously limit recovery for noneconomic damages against health care professionals to $250,000 for a course of care of one patient regardless of the number of plaintiffs or the number of defendants. Evans v. Colo. Permanente Med. Group, P.C., 902 P.2d 867 (Colo. App. 1995), aff'd, 926 P.2d 1218 (Colo. 1996).
Limitations of damages for all defendants are governed by this act rather than the general damages statute because of the particular type of action, medical malpractice claims, and the particular class of defendants, health care professionals, involved. Evans v. Colo. Permanente Med. Group, P.C., 902 P.2d 867 (Colo. App. 1995), aff'd, 926 P.2d 1218 (Colo. 1996).
Plaintiffs were unable to establish they were treated any differently from other persons whose cause of action accrued at the same time and, therefore, could not establish disparate treatment for an equal protection claim. Garhart v. Columbia/HealthONE, L.L.C., 95 P.3d 571 (Colo. 2004).
A damage cap should be applied to the jury award before apportionment of the award pursuant to the jury's allocation of fault. Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571 (Colo. 2004).
No challenge for cause for juror with specific knowledge of damages caps under HCAA notwithstanding requirement in subsection (1) that prevents disclosure of such damage limitations to the jury. Trial court did not err in rejecting defendant's challenge for cause for prospective juror with special knowledge of the caps because this is not a ground set forth in C.R.C.P. 47 (e) for dismissal of a potential juror. Dupont v. Preston, 9 P.3d 1193 (Colo. App. 2000), aff'd on other grounds, 35 P.3d 433 (Colo. 2001).
The $250,000 cap on noneconomic damages in this section does not limit damages for physical impairment or disfigurement in a medical malpractice case, and, therefore, it is proper for the court to instruct a jury to award a separate category of damages for physical impairment and disfigurement. Preston v. Dupont, 35 P.3d 433 (Colo. 2001).
However, damages for physical impairment and disfigurement are subject to the HCAA's one million dollar damages limitation. Wallbank v. Rothenberg, 74 P.3d 413 (Colo. App. 2003).
Damages cap under the HCAA is not in conflict with the contract exception to the collateral source statute, 13-21-111.6, and is thus applicable in post-verdict proceedings to reduce damages in medical malpractice actions under this section. Pressey v. Children's Hosp. Colo., 2017 COA 28, __ P.3d __.
Applicable standard of review of a trial court determination of good cause and unfairness for purposes of the exception to the total damages cap is whether the trial court abused its discretion. Wallbank v. Rothenberg, 140 P.3d 177 (Colo. App. 2006).
Moving party bears burden of proving good cause and unfairness in order to exceed the cap on total damages. Wallbank v. Rothenberg, 140 P.3d 177 (Colo. App. 2006).