Susan Ann Scholle v. Edward Ehrichs ( 2022 )

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
July 28, 2022
2022COA87No. 20CA2051, Scholle v. Ehrichs – Health and Welfare —
Health Care Availability Act — Limitation of Liability —
Collateral Source Evidence — Contract Exception
Among other things, a division of the court of appeals
considers whether the trial court abused its discretion in entering a
judgment (for $9 million) in excess of the Health-Care Availability
Act’s $1 million damages cap. In entering judgment in excess of the
damages cap, the trial court did not consider that the injured party
would not have to repay any third-party providers or payers for
approximately $6 million in past medical expenses. A majority of
the division concludes that that this was reversible error. The
dissent opines that the majority’s analysis is contrary to the plain
language of the contract exception to the collateral source rule.
COLORADO COURT OF APPEALS 2022COA87Court of Appeals No. 20CA2051
City and County of Denver District Court No. 17CV31764
Honorable Robert L. McGahey, Jr., Judge
Susan Ann Scholle, as Personal Representative for the Estate of Daniel B.
Scholle,
Plaintiff-Appellee,
v.
Edward Ehrichs, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC,
d/b/a Sky Ridge Medical Center,
Defendants-Appellants.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DAILEY
Tow, J., concurs
Berger, J., concurs in part and dissents in part
Announced July 28, 2022
Thomas Keel & Laird, LLC, Isobel S. Thomas, Jennifer L. Keel, Matthew R.
Laird, Denver, Colorado; Connelly Law, LLC, Sean Connelly, Denver, Colorado,
for Plaintiff-Appellee
Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado; Hall &
Evans, L.L.C., Deanne C. McClung, Mary P. Kaluk, Denver, Colorado, for
Defendant-Appellant Edward Ehrichs, M.D.
Wheeler Trigg O’Donnell LLP, Kevin J. Kuhn, Theresa Wardon Benz, Meghan
Frei Berglind, Kevin C. Havelda, Denver, Colorado; Messner Reeves LLP,
Douglas C. Wolanske, Mark B. Collier, Denver, Colorado, for Defendant-
Appellant Michael Rauzzino, M.D.
Sharuzi Law Group, Ltd., Jacqueline B. Sharuzi, Theodore Hosna, Denver,
Colorado, for Defendant-Appellant HCA-HealthONE, LLC, d/b/a Sky Ridge
Medical Center
¶1 In this medical malpractice case, the defendants — Edward
Ehrichs, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC,
d/b/a Sky Ridge Medical Center (the Hospital) — appeal the trial
court’s entry of judgment in favor of Susan Ann Scholle, personal
representative of the estate of the plaintiff, Daniel B. Scholle.1 We
affirm in part, reverse in part, and remand with directions.
I. Background
¶2 During a five-week trial, the jury heard evidence from which it
could reasonably find the following.
¶3 In August 2015, Daniel B. Scholle was severely injured as a
result of elective back surgery performed by Doctors Ehrichs and
Rauzzino at the Hospital.
¶4 Dr. Ehrichs is a general and vascular surgeon whose role in
the surgery was to access the spine through the abdomen and, in
his words, move “blood vessels out of the way so that the spine and
disk space [are] exposed for the spine surgeon.” After doing so here,
1Daniel Scholle died on February 5, 2022. This court granted
Susan Scholle’s motion for substitution of party on March 6, 2022.
Unless the context indicates otherwise, we’re referring to Daniel B.
Scholle or his legal team when we use the word “Scholle.”
1
he left the operating room, and Dr. Rauzzino — a specialist in
spinal surgery — and his Physician’s Assistant (PA) then performed
the spinal procedure: a discectomy and anterior lumbar interbody
fusion (ALIF).
¶5 Around 1:25 p.m., while removing a guide device — the
Medtronic LT cage system — during the fusion part of the
procedure, Dr. Rauzzino detected heavy bleeding from what was
eventually determined to be an injury to Scholle’s iliac vein. Dr.
Ehrichs was recalled to the operating room, and he and Dr.
Rauzzino tried unsuccessfully to get control of the bleeding.
Hospital medical personnel (the medical team), including other
surgeons and an on-call physician, were called in to help.
¶6 Scholle experienced significant blood loss2 and received a
constant blood transfusion. Around 4:05 p.m., he went into cardiac
arrest. He was revived.
¶7 Around 4:15 p.m., the medical team doctors decided to repair
the injury to Scholle’s vein using venous stents. But the stents
2Scholle lost seventeen liters of blood — about three times his total
blood volume — throughout the procedure.
2
were too small for Scholle’s atypically large vein. Consequently, the
Hospital’s medical team opted to obtain, from another hospital, an
endovascular aneurysm repair (EVAR) kit containing a larger stent
that was designed for use in performing abdominal aortic aneurysm
(AAA) surgeries. Using two EVAR stents, the medical team was able
to repair Scholle’s vein and hand the matter back to Dr. Ehrichs at
6:43 p.m. to finish the procedure. Scholle was then transported to
the intensive care unit (ICU).
¶8 Dr. Ehrichs saw Scholle the next day, hoping to confirm that
he could soon remove some laparotomy pads (i.e., sponges) he had
used during the surgery to absorb some of the bleeding. Dr.
Ehrichs determined, however, that Scholle was too unstable at that
point and chose, instead, to remove the pads “two or three” days
later.
¶9 Scholle stayed in the ICU for 100 days because of continued
complications. He suffered an infection in the surgical site, which
progressed into sepsis and required repeated abdominal surgeries;
injured kidneys requiring repeated dialysis; an abdominal abscess;
peritonitis; colon perforation; respiratory distress; stroke; foot drop;
and gangrene in the toes requiring an amputation.
3
¶ 10 Scholle also spent a month in a rehabilitation center and
continued receiving medical treatment for different problems
experienced since surgery.
¶ 11 Two years after the surgery, Scholle filed the present medical
malpractice action against Drs. Ehrichs and Rauzzino and the
Hospital. And after a twenty-two-day trial, the jury determined that
Dr. Rauzzino was 45% responsible, Dr. Ehrichs 40% responsible,
and the Hospital 15% responsible, for $9,292,887 in economic
damages to Scholle.3
¶ 12 The trial court said that it would subsequently (1) adjust the
jury’s award of damages in accordance with the Health-Care
Availability Act (HCAA), sections 13-64-101 to -503, C.R.S. 2021;
and (2) enter judgment nunc pro tunc to the day of the jury’s verdict,
for purposes of calculating interest.
¶ 13 Approximately three months after the jury returned a verdict,
the trial court, in a written order, found that “good cause” existed
for allowing damages in excess of the $1 million HCAA cap.
3The award encompassed $6 million for past medical expenses;
$292,600 for past lost earnings; $2,616,876 for future medical
expenses; and $383,411 for future lost income.
4
¶ 14 And, nearly ten months after the jury returned a verdict, and
after significant post-trial litigation, the trial court determined in a
written order that (1) judgment would enter as of that date (as
opposed to date the jury returned its verdict); (2) prejudgment
interest was part of the damages award; (3) Scholle was entitled, as
of that date, to $5,040,278.31 in prejudgment (prefiling, post-filing,
and post-verdict) interest; and (4) final judgment would, then, enter
in the amount of $14,997,980.28, with each of the three defendants
liable according to the jury’s previous allocation of fault.
¶ 15 All three defendants now appeal.
II. Issues on Appeal
¶ 16 The defendants raise numerous issues on appeal. The issues
can, however, be categorized as follows:
1. Did the trial court err by denying Dr. Rauzzino’s and the
Hospital’s motions for directed verdict?
2. Did the court err by instructing the jury on physical
impairment, the “thin skull” doctrine, and negligence per
se?
3. Does the record support the jury’s award of economic
damages?
5
4. Did the court properly enter judgment in excess of the $1
million HCAA damages cap and without accounting for
possible collateral sources of compensation?
5. Did the court properly enter judgment without giving it
nunc pro tunc effect to the day the jury returned its
verdict?
¶ 17 We address each contention in turn.
III. Dr. Rauzzino’s and the Hospital’s Motions for Directed Verdict
¶ 18 Dr. Rauzzino and the Hospital contend that the trial court
erred by determining that there was sufficient evidence of their
negligence to send the issue of their liability to the jury.4 We
disagree.
4 Unlike Dr. Rauzzino and the Hospital, Dr. Ehrichs does not make
such a challenge on appeal. Scholle had alleged that Dr. Ehrichs
was negligent in failing to remain in the operating room during
surgery; failing to properly and timely identify and care for Scholle’s
condition; repeatedly using the same or similar, but ineffective,
techniques to repair the vein injury, thereby worsening it; failing to
timely request assistance; failing to properly assess, monitor, and
care for Scholle; and leaving the sponges in Scholle’s body for an
extended period of time.
6
¶ 19 We review a trial court’s decision on a motion for directed
verdict de novo. State Farm Mut. Auto. Ins. Co. v. Goddard, 2021
COA 15, ¶ 26.
A. General Legal Principles
¶ 20 Under C.R.C.P. 50, a party may move for a directed verdict at
the close of the evidence offered by the opposing party. “Directed
verdicts are not,” however, “favored.” Goddard, ¶ 25. Indeed, a
motion for directed verdict may be granted only if the evidence,
considered in the light most favorable to the nonmoving party,
“compels the conclusion that reasonable persons could not disagree
and that no evidence, or legitimate inference therefrom, has been
presented upon which a jury’s verdict against the moving party
should be sustained.’” Id. (quoting Burgess v. Mid-Century Ins. Co.,
841 P.2d 325, 328 (Colo. App. 1992)).
¶ 21 “Like the [trial] court, we must consider all the facts in the
light most favorable to the nonmoving party and determine whether
a reasonable jury could have found in favor of the nonmoving
party.” Id. at ¶ 26. A court shouldn’t grant a motion for directed
verdict “unless there is no evidence that could support a verdict
7
against the moving party on the claim.” Parks v. Edward Dale
Parrish LLC, 2019 COA 19, ¶ 10.
¶ 22 “Like other negligence actions,” to succeed on a medical
malpractice action, a “plaintiff must show a legal duty of care on the
defendant’s part, breach of that duty, injury to the plaintiff, and
that the defendant’s breach caused the plaintiff’s injury.” Day v.
Johnson, 255 P.3d 1064, 1068-69 (Colo. 2011).
B. Dr. Rauzzino
¶ 23 As the supreme court noted in Day,
[A] medical malpractice claim requires more
than proving a poor outcome; a breach of the
applicable standard of care is required. To
establish a breach of the duty of care in a
medical malpractice action, the plaintiff must
show that the defendant failed to conform to
the standard of care ordinarily possessed and
exercised by members of the same school of
medicine practiced by the defendant. That
standard of care is measured by whether a
reasonably careful physician of the same
school of medicine as the defendant would
have acted in the same manner as did the
defendant in treating and caring for the
patient. Thus, the standard of care for medical
malpractice is an objective one.
Id. at 1069 (footnote and citations omitted).
8
¶ 24 Dr. Rauzzino contends that the trial court erred by denying his
motion for directed verdict because there was insufficient evidence
to show that he breached a duty of care owed to Scholle by
operating despite risks associated with Scholle’s diabetes, using a
PA to assist during surgery, and using the Medtronic device.
1. Operating Despite Risks Associated
with Scholle’s Diabetes
¶ 25 Evidence was presented at trial that Scholle’s primary care
physician (PCP) ordered routine pre-operation blood tests five days
before surgery, including an A1C test, which measured an average
of blood glucose levels over an approximate three-month time
period, and a different test for current blood glucose levels.
Scholle’s results showed that, although his current blood glucose
level was within the normal range, he had elevated A1C levels,
indicating poor blood sugar control over the three-month period
before surgery.
¶ 26 Scholle presented Dr. Jeffrey Poffenbarger as a standard of
care expert witness. He was a practicing neurosurgeon for nineteen
years and had performed the same surgery as Scholle’s numerous
times.
9
¶ 27 According to Dr. Poffenbarger, Scholle’s A1C levels were
“extremely” elevated — an indication of uncontrolled diabetes that
could lead to “poor wound healing, poor bone growth rates after
surgery,” and “increased risk of infection.”5 A1C levels could be
improved with diligent efforts, Dr. Poffenbarger testified, but it takes
some time to do so.
¶ 28 Dr. Poffenbarger testified that “in an elective [surgery]” such as
this, in the presence of increased risk of infection from the A1C
levels, “taking the time to improve that risk is the responsible
standard of care,” and that Dr. Rauzzino should have canceled
surgery and ordered six months of conservative (i.e., physical)
therapy, consistent with what Dr. Poffenbarger believed to be “the
standard of care.”
¶ 29 On appeal, Dr. Rauzzino contends that the evidence defied
Scholle’s theory that Dr. Rauzzino improperly operated in the
presence of “uncontrolled” diabetes based solely on his elevated
A1C levels. In this regard, Dr. Rauzzino points to, among other
5 Dr. Rauzzino agreed that elevated A1C levels present a “primary
risk” of “increased” infection.
10
things, the fact that Scholle’s blood glucose levels were within the
normal range days before surgery; that a published article had said
“there are no standards of care for optimal A1C levels before
surgery”;6 that Scholle’s PCP had cleared him for surgery; that Dr.
Rauzzino had consulted the chief of medicine at the Hospital, who
said Scholle’s A1C levels were not a contraindication to surgery;
and that he had met with Scholle before surgery, who was informed
of the risks associated with his elevated A1C levels and who, after
acknowledging he had elevated levels in the past, decided to
proceed anyway. This “overwhelming proof,” Dr. Rauzzino argues,
“nullified” Dr. Poffenbarger’s opinion about Dr. Rauzzino’s breach of
the applicable standard of care.
¶ 30 Indeed, “the evidence supporting a directed verdict must do
more than contradict conflicting evidence; it must nullify” it.
Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681, 686 (Colo.
1998) (citation omitted); see Gossard v. Watson, 122 Colo. 271, 273,
221 P.2d 353, 354 (1950) (same). However, a nullification occurs
6Dr. Poffenbarger, who had also published on the topic,
acknowledged that his “paper didn’t say anything different.” He
did, however, say “[t]here is some controversy in the literature.”
11
only if “no evidence received at trial, or inference therefrom, could
sustain a verdict.” Tisch v. Tisch, 2019 COA 41, ¶ 34. Only then is
a trial court “justified in directing one, not because it would have
the authority to set aside an opposite one, but because there was
an actual defect of proof; and, hence, as a matter of law, the party
was not entitled to recover.” Gossard, 122 Colo. at 277, 221 P.2d at
356.
¶ 31 Dr. Poffenbarger’s opinion may have been the “only” one7 (as
Dr. Rauzzino contends) saying that the standard of care in the
presence of elevated A1C levels required a postponement of surgery.
But his opinion was, nonetheless, presented to the jury and could
serve as a basis for holding Dr. Rauzzino liable in connection with
Scholle’s injuries. See Parks, ¶ 9 (stating that a court shouldn’t
grant a motion for directed verdict “unless there is no evidence that
could support a verdict against the moving party on the claim”).
7Scholle’s PCP testified that he would not have cleared Scholle for
surgery had he known about the elevated A1C levels. However,
because the PCP was not endorsed as an expert on the standard of
care, he was not permitted to testify directly on that issue.
12
¶ 32 “[T]he question of whether a person was negligent — that is,
whether [that person] breached [the] duty of care by acting
unreasonably under the circumstances — is ordinarily a question of
fact for the jury.” Hesse v. McClintic, 176 P.3d 759, 764 (Colo.
2008). And it is “the jury’s sole province to determine the weight of
the evidence and the credibility of witnesses, and to draw all
reasonable inferences of fact therefrom.” Morales v. Golston, 141
P.3d 901, 906 (Colo. App. 2005) (identifying several inferences that
the jury could have made based on the evidence presented at trial).
¶ 33 Because some evidence was presented that Dr. Rauzzino
breached the applicable standard of care, the trial court properly
denied Dr. Rauzzino’s motion for directed verdict with respect to
this part of Scholle’s case.
2. Use of the Medtronic Device
¶ 34 Dr. Rauzzino also contends that Scholle did not prove that Dr.
Rauzzino’s use of the Medtronic device breached the applicable
standard of care. Dr. Rauzzino is not entitled to relief.
¶ 35 At trial, Scholle presented evidence, through Dr. Poffenbarger,
that the Medtronic device, used to stabilize the spine during the
surgery, must be seated correctly (including making sure blood
13
vessels are properly out of the way) both to (1) avoid unintended
injury from other tools and (2) keep unobstructed the doctor’s view
of the area operated on. Further, Dr. Poffenbarger read a warning
from the Medtronic’s “surgeon guide” that the device must be
properly seated before proceeding in the surgery and agreed when
he read that “the most common and serious adverse events [as
relevant here] were intraoperative vascular injuries,” the exact
injuries Scholle had experienced. Scholle also presented x-ray
images to the jury, which, according to Dr. Poffenbarger, showed
that the Medtronic device had not been seated properly. This was
evident, Dr. Poffenbarger said, from the existence of certain gaps
between the device and tissue.
¶ 36 Dr. Rauzzino asserts that Dr. Poffenbarger’s testimony in this
regard was fatally undermined by (1) Dr. Poffenbarger’s admission,
during cross-examination, that while he thought the Medtronic
“device is unsafe,” he “would not elevate that statement to a
standard-of-care statement”; (2) Dr. Poffenbarger’s knowledge that
other neurosurgeons had used the device and that it was used
14
across the country; (3) Dr. Mark McLaughlin’s8 expert testimony
that he had used the device around the same time that Dr.
Rauzzino had; (4) Dr. McLaughlin’s testimony that “the device that
[a doctor] is comfortable with and [is] used to is usually the one
that’s going to get the job done as best as possible”; and, (5) Dr.
McLaughlin’s expert opinion, based on a review of all the materials,
that Dr. Rauzzino “did not” do anything negligently which caused
Scholle’s injuries.
¶ 37 In denying Dr. Rauzzino’s motion for directed verdict on this
issue, the court stated there was “plenty of evidence that even if it
wasn’t improper to use the device, how the device was used was
improper.”
¶ 38 The trial court correctly distinguished between issues of
(1) negligence in the mere use of a Medtronic device — which was
not the theory upon which Scholle proceeded; and (2) negligently
misusing the device — which was Scholle’s theory. Because Scholle
presented evidence that Dr. Rauzzino had misused the device, the
trial court properly denied the motion for directed verdict with
8 Dr. McLaughlin, a neurosurgeon, was Dr. Rauzzino’s expert.
15
respect to this part of Scholle’s case. See Tisch, ¶ 34 (A directed
verdict is proper only if “no evidence received at trial, or inference
therefrom, could sustain a verdict.”).9
C. The Hospital
¶ 39 The Hospital contends that the trial court erred by denying its
motion for directed verdict because (1) it did not breach any duty to
provide adequate blood products, regardless of whether a massive
transfusion protocol (MTP) was activated; (2) it had no duty to stock
EVAR arterial stents; and (3) any negligence on its part was not a
proximate cause of Scholle’s injuries.
9 Dr. Rauzzino posits a third ground for challenging the court’s
denial of the motion for directed verdict, that is, that Scholle
presented no proof that he’d breached the applicable standard of
care by having a PA assist him during surgery. So far as we can
discern, however, Scholle never presented or argued that to the jury
as a theory of liability. True, at one point an issue was raised
whether Scholle had given “informed consent” to the participation of
a PA during surgery. But the evidence (a signed “informed consent”
document) showed that Scholle had done so, and the jury found
that neither Dr. Rauzzino nor Dr. Ehrichs was liable for negligence
based on Scholle’s lack of informed consent. Because we are
unable to discern any other proffered theory of potential liability
based on the involvement of the PA, we do not discuss the issue
further.
16
¶ 40 To succeed on an institutional negligence claim against the
Hospital, “a plaintiff must prove that (1) the hospital had a legal
duty to conform to a certain standard of conduct; (2) the hospital
breached that duty; (3) the plaintiff was injured; and (4) there was a
causal connection between the hospital’s alleged negligent conduct
and the resulting injury.” Settle v. Basinger, 2013 COA 18, ¶ 58
(analyzing a claim of negligent credentialing).
¶ 41 “Proving breach of a duty of care gets a plaintiff only halfway
home on a negligence claim. The plaintiff must also prove that the
breach of duty caused the claimed injury.” Garcia v. Colo. Cab Co.
LLC, 2021 COA 129, ¶ 36. “This requirement has two parts: the
plaintiff must prove both ‘cause in fact’ and ‘proximate’ or ‘legal’
cause.” Id. (quoting Rocky Mountain Planned Parenthood, Inc. v.
Wagner, 2020 CO 51, ¶ 27).
¶ 42 The test for cause-in-fact, commonly known as the “but for”
test, is “whether, but for the alleged negligence, the harm would not
have occurred,” that is, whether the negligent conduct in a “natural
and continued sequence, unbroken by any efficient, intervening
cause,” produced the alleged injury. Rocky Mountain Planned
Parenthood, ¶ 28 (quoting N. Colo. Med. Ctr., Inc. v. Comm. on
17
Anticompetitive Conduct, 914 P.2d 902, 908 (Colo. 1996)); see Groh
v. Westin Operator, LLC, 2013 COA 39, ¶ 50 (Causation may be
found where the negligent actor “sets in motion a course of events”
that leads to the plaintiff’s injury.), aff’d, 2015 CO 25.
¶ 43 The test for “proximate” or “[l]egal” cause “depends largely on
the question of the foreseeability of the harm.” Rocky Mountain
Planned Parenthood, ¶ 30. To prove proximate cause, “the plaintiff
must establish that the harm incurred was a ‘reasonably
foreseeable’ consequence of the defendant’s negligence.” Deines v.
Atlas Energy Servs., LLC, 2021 COA 24, ¶ 13. Proximate cause may
be established, though, “even where the actor did not and could not
foresee the precise way the injury would come about.” Id.
1. Blood Products Theory
¶ 44 The Hospital does not dispute that it had a legal duty to have
adequate blood products on hand to respond to an emergency
involving the excessive loss of blood during surgery. But, it says,
Scholle’s claims against the Hospital were premised on facts
demonstrably proven to be false.
¶ 45 In this regard, the Hospital insists that Scholle’s experts
assumed that an MTP had been activated, but every individual
18
involved in the transfusion and/or was present in the operating
room who was deposed or testified at trial said otherwise.
¶ 46 Further, although Scholle’s experts opined that the Hospital
had failed to supply enough blood products for the transfusion, the
anesthesiologist in charge of Scholle’s transfusion testified that he
always had a supply of blood products he needed when he needed
them; that he never had to wait to receive a requested product; and
that he was never told by anyone that the Hospital didn’t have stock
of a blood product or that one of his requests would be delayed.
¶ 47 But Scholle points out that he presented contradictory
evidence, or evidence of circumstances from which the jury could
infer, that the Hospital was negligent in this regard:
 One doctor who responded to the emergency room
initially said that he’d been told upon arrival that
personnel were operating under an MTP; it was only
later, after discussing the matter with defense lawyers,
that he said “this might not have been true.”
 One of Scholle’s experts, an anesthesiologist, testified
that, given the circumstances, the MTP should have been
activated.
19
 That anesthesiologist testified that (1) he performs blood
transfusions similar to the one Scholle received and (2) in
his experience under an MTP, blood products are
delivered in such a way that, even though the blood is
divided into its products (i.e., red blood cells, platelets,
and plasma, and cryoprecipitate), it is administered to
the patient in proper ratios as if it were whole blood.
 Scholle’s expert anesthesiologist said that the MTP is
designed to deliver proper blood ratios to minimize the
hypothermia, acidosis, and coagulopathy, thereby
preventing subsequent problems such as organ
malfunction caused by a lowered body temperature,
heart malfunction and failure of oxygen delivery from the
blood caused by increased levels of acid and increasing
severity of these problems caused by the blood’s failure to
clot (i.e., and continuing to bleed out).
 According to the expert, during Scholle’s surgery, the
Hospital’s blood bank did not deliver the blood products
in this ratio: it instead delivered blood in ratios different
than those required during an MTP.
20
 The anesthesiologist opined that incorrect ratios of blood
were delivered to the operating room because the blood
bank did not have all of the right blood products in
stock.10
 That expert answered yes to counsel’s question whether
the Hospital’s response under the MTP “fell below the
standard of care.”
 The same expert also testified that Scholle was losing
blood faster than the team could administer it, which
caused Scholle to experience hypothermia, acidosis, and
coagulopathy (improper clotting).
 Scholle’s nephrologist, who treated Scholle’s subsequent
kidney injuries, explained that “whenever there is
massive blood loss,” as in Scholle’s case, kidney cells are
“slough[ed] off,” which can lead to acute tubular necrosis.
10Similarly, a blood bank employee at the Hospital testified that, in
one instance, about forty-five minutes of time elapsed between
receiving an order for plasma and having compatible plasma
available (because it was being delivered, needed to be thawed, and
the thawing machine was already at capacity).
21
 Although hospital rules required documenting
“complications” and “untoward events,” a nurse shredded
“pick” and “preference” sheets documenting the
requested hospital equipment and what happened in the
operating room.
¶ 48 In our view, the above-recounted evidence was sufficient to
support a reasonable conclusion that the Hospital breached its duty
to have available and to timely provide appropriate blood products
for Scholle’s emergency room surgery, and that Scholle’s injuries
were a reasonably foreseeable consequence of that breach. Thus,
the trial court properly denied the Hospital’s motion for directed
verdict on this ground.
2. Stent Theory
¶ 49 The Hospital contends that the evidence failed to establish
that it was negligent in failing to stock, or have a policy in place to
timely procure, the EVAR kit that was ultimately used to repair the
injury to Scholle’s iliac vein. The expert opinion evidence offered in
support of Scholle’s “stent theory,” it says, was “lacking in probative
value” because it conflicted with the opinions of the Hospital’s
experts as well as with evidence that (1) very few hospitals stocked
22
the kits (during the emergency, hospital staff called six to eight
different facilities, and only one of them had a kit in stock); and (2)
the Hospital could not be expected to stock EVAR kits because it
did not have an AAA repair program that would have used the kits.
¶ 50 But the credibility of witnesses, and the effect and weight of
conflicting and contradictory evidence, are all questions of fact for a
jury to resolve, rather than questions of law to be resolved in ruling
on a motion for directed verdict. See Park Rise Homeowners Ass’n
v. Res. Constr. Co., 155 P.3d 427, 432 (Colo. App. 2006).
¶ 51 Scholle presented expert opinion that a hospital of the
Hospital’s size with a vascular surgeon and an emergency room
treating patients with ruptured abdominal aortic aneurysms should
have foreseen the need for, and thus stocked, the kit.
¶ 52 Further, Scholle presented the following evidence that the
Hospital’s failure to stock the EVAR kits was a proximate cause of
Scholle’s injuries:
 One of the surgeons who helped to repair Scholle’s vein
agreed when counsel asked whether a “delay of an hour
and 45 minutes” while waiting for the EVAR kits
“cause[d] injury” to Scholle.
23
 Scholle’s expert in healthcare administration agreed
when counsel asked whether the delay was “a cause of
injury to” Scholle.
¶ 53 In resolving this part of the Hospital’s motion for directed
verdict, the trial court observed that the evidence was “wafer thin”
and “very, very thin.” Nonetheless, the court still perceived that
there was “sufficient evidence” to go to the jury.
¶ 54 We agree with the trial court. Even though the defendants
introduced evidence that hemostasis (i.e., cessation of bleeding) was
achieved while the EVAR kits were en route, a reasonable inference
could be made that, but for the kits not being immediately in stock
and available, the length of time that Scholle was experiencing
massive blood loss would have been less, and, consequently, he
would not have been injured to the extent he was.
¶ 55 Because reasonable minds could draw more than one
inference from the evidence, Garcia, ¶ 38, once again, it was for the
jury to resolve the conflicts in (and conflicting inferences from) the
evidence, Walker v. Ford Motor Co., 2015 COA 124, ¶ 38, aff’d on
24
other grounds, 2017 CO 102. Consequently, the Hospital was not
entitled to a directed verdict on this ground either.11
IV. Jury Instructions
¶ 56 The defendants next contend that the trial court reversibly
erred by instructing the jury on (1) physical impairment as a
category of damages separate and apart from noneconomic
damages; (2) the “thin skull” doctrine; and (3) negligence per se on
the part of the Hospital. We disagree.
¶ 57 “Trial courts have a duty to correctly instruct juries on matters
of law.” Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA
82, ¶ 67 (quoting Bedor v. Johnson, 2013 CO 4, ¶ 8). Trial courts
should not, however, “instruct on abstract principles of law
unrelated to the issues in controversy, nor on statements of law
11 The Hospital also argues, in a cursory manner, that reversal is
required because Scholle’s claim for negligence per se failed to state
a claim as a matter of law because the regulations on which the
claim was based are not “public safety” measures. However,
inasmuch as the Hospital did not raise that argument in its motion
for directed verdict, we decline to address it. See Flores v. Am.
Pharm. Servs., Inc., 994 P.2d 455, 457-58 (Colo. App. 1999)
(“C.R.C.P. 50, in part, provides that a motion for a directed verdict
shall state the specific grounds therefor. An appellate court will not
consider issues, arguments, or theories not previously presented in
trial proceedings.”).
25
which are incorrect or misleading.” People v. Alexander, 663 P.2d
1024, 1032 (Colo. 1983) (citations omitted).
¶ 58 We review the instructions de novo to determine whether they
correctly state the law. Vititoe, ¶ 67. If they do, we then review the
trial court’s decision to give a particular instruction for an abuse of
discretion. Id. “A trial court abuses its discretion only when its
ruling is manifestly arbitrary, unreasonable, or unfair, or the
instruction is unsupported by competent evidence in the record.”
Id.A. Physical Impairment and Disfigurement as
a Separate Category of Damages
¶ 59 The defendants assert that the trial court erred by instructing
the jury that “permanent impairment and disfigurement”12 was a
separate category from “non-economic damages” — which Scholle
had disavowed any interest in recovering. We conclude that
reversal is not warranted.
¶ 60 Initially, the trial court
12The trial court did not instruct the jury in terms of “permanent
impairment and disfigurement;” rather, it used the terms “physical
impairment and disfigurement.” (Emphases added.)
26
 informed the jury, in Instruction Number 19, that it
could consider damages for three categories of injuries:
(1) “noneconomic injuries,” including “inconvenience,
emotional stress, and impairment of the quality of life”;
(2) “economic injuries,” including “loss of earnings or
damage to his ability to earn money in the future [and]
reasonable and necessary medical, hospital, and other
expenses”; and (3) “physical impairment or disfigurement”
(emphases added); and
 gave the jury a verdict form, with instructions to enter
the total amount of injuries, damages, or losses, if any, in
each of four categories: (1) “Medical or other health care
expenses”; (2) “Lost earnings (and lost earning capacity)”;
(3) “Other economic losses than those included [in the
prior two categories]”; and (4) “Non-economic losses,
including inconvenience, emotional stress, and
impairment of the quality of life.”
¶ 61 “Under Colorado common law, damages for physical
impairment and disfigurement have historically been recognized as
a separate element of damages.” Pringle v. Valdez, 171 P.3d 624,
27
630 (Colo. 2007). But under the HCAA, damages for physical
impairment and disfigurement fall within the “[d]irect noneconomic
loss or injury” category of damages. § 13-64-302(1)(II)(A), C.R.S.
2021; see Pringle, 171 P.3d at 631 (noting that “physical
impairment and disfigurement damages [are] among those claims
subject to the HCAA’s noneconomic damages cap”).
¶ 62 Damages for pain and suffering are a subset of damages for
noneconomic injury. See § 13-21-102.5(b), C.R.S. 2021; Pringle,
171 P.3d at 625. After Scholle’s counsel, on several occasions,
disavowed any interest in recovering damages for pain and
suffering, the court planned to tell the jury that noneconomic
damages had been mistakenly included in Instruction Number 19
and the verdict form, and that the jurors were “not to consider”
them. Before the court could do so, however, another of Scholle’s
attorneys argued that the jury could consider noneconomic
damages. Consequently, the court left the verdict form and the
instructions “the way they are.”
¶ 63 The jury awarded monetary amounts on the verdict form only
for “Medical and other health care expenses” and “Lost earnings
28
(and lost earning capacity)”; it awarded $0 in damages for “other
economic losses” and “non-economic losses.”
¶ 64 On appeal, the defendants assert that (1) given Scholle’s
waiver of the right to recover noneconomic damages, there was no
reason to instruct the jury on noneconomic damages, including
permanent impairment and disfigurement; and (2) informing the
jury that it could consider physical impairment and disfigurement
as a separate category of damages, without, however, providing a
place on the verdict form for this “separate” category of damages,
injected confusion and uncertainty into the verdict.
¶ 65 We agree that where, as here, the HCAA applies, the trial court
should not have informed the jury that physical impairment and
disfigurement is a separate category of damages; a court should,
instead, reference it, if at all, under the noneconomic category of
damages.
¶ 66 That said, the court’s error does not warrant reversal.
¶ 67 A “court’s erroneous provision of an instruction is reversible
error only if the error prejudiced a party’s substantial rights. Such
prejudice occurs where the jury might have returned a different
29
verdict had the court not given the improper instruction.”
McLaughlin v. BNSF Ry. Co., 2012 COA 92, ¶ 32 (citations omitted).
¶ 68 Here, the court’s error in making “physical impairment and
disfigurement” damages a separate category of damages, and, even
in including a “noneconomic damages” category at all, was
harmless, given the jury’s award of “$0” in noneconomic damages.
¶ 69 We reject the defendants’ additional argument that the jurors
may have awarded physical impairment and disfigurement damages
as “medical and health expenses.” As Scholle argues, however, “the
court told jurors [in Instruction Number 19] that any physical
impairment damages ‘shall not include damages again for losses or
injuries already determined under either numbered paragraph 1 or
2 above” (which included “necessary medical, hospital, and other
expenses”). Absent a showing to the contrary (which is not made
here), we must presume that the jury understood and followed the
court’s instruction. See People v. Licona-Ortega, 2022 COA 27, ¶
91.
B. The “Thin Skull” Doctrine
¶ 70 The defendants also contend that the trial court erroneously
gave the jury a “thin-skull plaintiff” instruction.
30
¶ 71 Over the defendants’ objection, the trial court instructed the
jury that
In determining the amount of Plaintiff’s actual
damages, you cannot reduce the amount of or
refuse to award any such damages because of
any physical frailties or illness, including
diabetes, of the Plaintiff that may have made
him more susceptible to injury, disability, or
impairment than an average or normal
person.13
¶ 72 On appeal, the defendants contend that this was error. We
disagree.
¶ 73 “Under Colorado law, it is fundamental that a tortfeasor must
accept his or her victim as the victim is found.” Schafer v. Hoffman,
831 P.2d 897, 900 (Colo. 1992). “Thus, a tortfeasor is fully liable
for any damages resulting from its wrongful act even if the victim
had a pre-existing condition that made the consequences of the
wrongful act more severe for him than they would have been for a
person without the condition.” McLaughlin, ¶ 35.
¶ 74 A “thin skull” or “eggshell plaintiff” instruction is appropriate
in tort cases “when the defendant seeks to avoid or reduce liability
13This part of Instruction Number 20 was patterned after CJI-Civ.
6.7 (2019).
31
by employing a technique known as ‘spotlighting,’ in which the
defendant calls attention to the plaintiff’s pre-existing conditions or
predisposition to injury and asserts that the plaintiff’s injuries
would have been less severe had the plaintiff been an average
person.” State Farm Mut. Auto Ins. Co. v. Pfeiffer, 955 P.2d 1008,
1010 (Colo. 1998); accord Kildahl v. Tagge, 942 P.2d 1283, 1286
(Colo. App. 1996) (“A ‘thin skull’ instruction is appropriate when a
defendant seeks to avoid liability by asserting that the victim’s
injuries would have been less severe had the victim been an average
person.”).
¶ 75 The defendants do not contest the correctness of the law
stated in the court’s “thin skull” instruction. But, they assert, the
instruction conveyed to the jury only abstract principles of law
unrelated to the issues in controversy. This follows, they say,
because they did not call attention to Scholle’s diabetes or any
other infirmity as a means of avoiding or reducing damages.
Instead, it was Scholle himself who introduced evidence of his
diabetes, in connection with his claim that, given his condition, Dr.
Ehrichs and Dr. Rauzzino should not have gone ahead with elective
surgery that day.
32
¶ 76 The defendants are largely — but not entirely — correct about
what happened during trial. As Scholle asserts, at one point, a
defense attorney asked one of Scholle’s experts on
cross-examination, “so patients whose diabetes is not under good
control are at greater risk of developing neuropathy; is that
correct?” The defendants attempt to deflect the significance of the
question by saying, essentially, that Scholle’s expert said he
couldn’t give an answer. Still, the question was directed at
determining whether Scholle’s diabetes increased the likelihood of
experiencing injuries for which he sought damages. Thus, it was
subject to being interpreted as an attempt to avoid or reduce
damages for injuries that “an average or normal person” would not
have experienced.
¶ 77 Because that one question raised “thin skull” issues, the court
did not abuse its discretion by giving the jury a “thin skull”
instruction.
¶ 78 Moreover, even if we were to assume the trial court erred in
giving the instruction, “[t]he court at every stage of the proceeding
must disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties.” C.R.C.P. 61. The
33
burden of showing reversible error is on the party asserting it.
Tech. Comput. Servs., Inc. v. Buckley, 844 P.2d 1249, 1256 (Colo.
App. 1992). Yet, in their opening briefs, the defendants make no
attempt to demonstrate how they may have been prejudiced as a
result of the instruction. All they argue is that “there was no reason
nor legal basis to give a thin skull instruction and the giving of the
instruction constituted reversible error.”
¶ 79 We recognize that “there can be prejudice from unsupported
instructions because the jury is likely to try to fit facts into an
erroneously given instruction.” Castillo v. People, 2018 CO 62,
¶ 61. But it is not apparent to us how the defendants would have
been prejudiced by the “thin skull” instruction. It did not
encourage the jury to render a verdict based on sympathy or
prejudice; it told the jurors only that they could not reduce
damages because of Scholle’s condition — not that they were
permitted to increase damages because of those conditions. See
O’Neal v. Bd. of Cnty. Comm’rs, No. 16-CV-01005-TMT-KLM, 2020
WL 2526782, at *10 (D. Colo. May 18, 2020) (unpublished order).
¶ 80 In any event, “it is not this court’s function to speculate as to
what a party’s argument might be. Nor is it our proper function to
34
make or develop a party’s argument when that party has not
endeavored to do so itself.” Beall Transp. Equip. Co. v. S. Pac.
Transp., 64 P.3d 1193, 1196 n.2 (Or. Ct. App. 2003). “If [the
defendants] wanted a weightier resolution of the issue, [they] should
have mounted a weightier contention. Gravitas begets gravitas.”
CSX Transp., Inc. v. Miller, 858 A.2d 1025, 1083 (Md. Ct. Spec. App.
2004); see also Redden v. Clear Creek Skiing Corp., 2020 COA 176,
¶ 21 (citing, with approval, this proposition from CSX Transp.).
C. Negligence Per Se
¶ 81 Finally, the Hospital contends that the court incorrectly
provided a negligence per se instruction to the jury. We conclude
that reversal is not required.
¶ 82 The trial court informed the jury, in Instruction Number 16,
that
At the time of the occurrence in question in
this case, the following regulations of the State
of Colorado were in effect:
 Hospitals must implement written
policies and procedures to provide for the
safety and welfare of the occupants of
their respective facilities.
 Hospitals must maintain a complete and
accurate medical record on every patient
35
from the time of admission through
discharge.
 Hospitals must provide for the
procurement, storage, and transfusion of
blood as needed for routine and
emergency cases.
 Hospitals must keep records which show
the complete receipt and disposition of
blood.
A violation of one or more of these ordinances
constitutes negligence as defined in
Instruction No. 15.
If you find such a violation, you may only
consider it if you also find that it was a cause
of the Plaintiffs claimed injur[ies], damages,
and/or losses.
¶ 83 On appeal, the Hospital contends that the trial court erred by
giving the jury that instruction because the regulations the court
used in crafting that instruction cannot, as a matter of law, serve as
the basis for a negligence per se claim. That’s because, it says, the
regulations at issue were adopted primarily for “licensure” reasons
and not, as required, for “the public’s safety.” See Smith v. Surgery
Center at Lone Tree, LLC, 2020 COA 145M, ¶ 39.
¶ 84 But that was not the argument that the Hospital made in the
trial court. In the trial court, the Hospital objected on the following
grounds to any consideration of a negligence per se claim: it wasn’t
36
pleaded, it didn’t fit the facts of the case, the regulations didn’t
provide for a standard of care in a professional medical malpractice
case, and, finally, that “a three-pronged test . . . needs to be
articulated before negligence per se can be established,” and that
“was[n’t] done.” At no time did the Hospital argue that the
regulations were adopted primarily for “licensure,” rather than
“public safety,” reasons.
¶ 85 “Because [the Hospital] did not object on this ground at trial,
we decline to address this new argument.” Peiffer, 955 P.2d at
1010 n.3; see Brown v. Am. Standard Ins. Co., 2019 COA 11, ¶ 21
(“[I]ssues not raised in or decided by the trial court generally will
not be addressed for the first time on appeal.”); O’Connell v. Biomet,
Inc., 250 P.3d 1278, 1282 (Colo. App. 2010) (“[W]hen a party fails to
assert an argument in the trial court but raises it for the first time
on appeal, the assertion is deemed waived.”); see also C.R.C.P. 51
(stating that the parties must object to jury instructions prior to
submission of the instructions to the jury, and that “[o]nly the
37
grounds so specified shall be considered on . . . appeal or
certiorari”).14
¶ 86 We also reject the Hospital’s request that we review its
unpreserved argument under a plain error standard. Appellate
courts apply plain error only in the “‘rare’ civil case, involving
‘unusual or special’ circumstances — and even then, only ‘when
necessary to avert unequivocal and manifest injustice.’” Wycoff v.
Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1269
(Colo. App. 2010) (quoting Harris Grp., Inc. v. Robinson, 209 P.3d
1188, 1195 (Colo. App. 2009)).
14 The Hospital argues that we should nonetheless consider the
issue preserved for review, consistent with Silva v. Wilcox, 223 P.3d
127, 134-35 (Colo. App. 2009), where a division of this court found
a “general objection” sufficient to preserve a challenge to a
negligence per se instruction based on “the context of the parties’
continuing dispute and the trial court’s consideration of both the
statutes and the ordinance.” We read Silva to mean that, although
the objection in the trial court was not made with the precision with
which it was presented on appeal, the gist of the objection
presented on appeal would nonetheless have been apparent to the
court. That is not, in our view, the situation here.
38
¶ 87 This is not, in our view, one of those “rare” cases — involving
unusual circumstances and necessary to avert unequivocal
injustice — calling for plain error review.
V. The Jury’s Award of Damages
¶ 88 The defendants contend that the jury’s award of economic
damages is, in several respects, unsupported by the evidence.15
More specifically, they argue that the trial court erred in refusing to
strike (1) $1.4 million of Scholle’s claimed past medical expenses,
for lack of evidence as to their reasonableness, necessity, and
causation; and (2) $456,848 in past medical expenses, as lacking
any evidentiary support. We decline to address the merits of the
$1.4 million issue because the defendants have failed to adequately
brief that issue. But, as for the $456,848 in past medical expenses,
15 Each of the defendants filed its or his own opening brief. In a
pattern repeated throughout the briefs, however, one of the
defendants (in this instance, Dr. Ehrichs) argued a point, and the
other two defendants summarily joined in that argument. This
manner of proceeding is highly questionable under C.A.R. 28(h)
(stating that “any party may adopt by reference any part of
another’s brief, but a party may not both file a separate brief and
incorporate by reference the brief of another party”).
39
we conclude that Scholle did not present sufficient evidence to
sustain that part of the award.
A. The $1.4 Million Figure
¶ 89 The defendants assert that the trial court should have granted
their motion for directed verdict with respect to $1,483,495 in past
medical expenses because Scholle did not present any proof that
those expenses were reasonable or causally related to any
negligence.
¶ 90 But as Scholle points out, the defendants did not identify in
their opening briefs which $1,483,495 of Scholle’s claimed $5.5-to-
$6 million in medical expenses were contested. It is not enough to
identify the contested expenses for the first time in a reply brief.
See In re Marriage of Dean, 2017 COA 51, ¶ 31 (“We do not consider
the arguments mother makes for the first time in her reply brief or
those that seek to expand upon the contentions she raised in her
opening brief.”). Nor is it enough simply to cite to portions of the
record (i.e., transcripts, motions) where the arguments were
identified for the trial court. See Gravina Siding & Windows Co. v.
Frederiksen, 2022 COA 50, ¶ 70 n.13 (“This attempt to incorporate
by reference arguments made in the trial court improperly ‘attempts
40
to shift — from the litigants to the appellate court — the task of
locating and synthesizing the relevant facts and arguments’ and
‘makes a mockery’ of the rules that govern the length of briefs.”
(quoting Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo. App.
2006))).
¶ 91 The parties are “responsible for advancing the facts and
arguments entitling them to relief.” Compos v. People, 2021 CO 19,
¶ 35 (quoting Greenlaw v. United States, 554 U.S. 237, 243-44
(2008)). Because the defendants’ argument has not been properly
presented to us on appeal, we decline to address it. See Pastrana v.
Hudock, 140 P.3d 188, 189 (Colo. App. 2006) (“[W]e will not search
the record for evidence to support allegations of error.”); Brighton
School Dist. 27J v. Transamercia Premier Ins. Co., 923 P.2d 328, 335
(Colo. App. 1996) (“[I]t is not the duty of the reviewing court to
search the record for evidence to support bald assertions.”).
B. The $456,848 Figure
¶ 92 This issue turns on exactly which summary exhibit was
admitted into evidence. The defendants point to “Exhibit 486,”
which they say was admitted (through Scholle’s testimony) and
which shows a total of only $5,543,152 in past medical expenses.
41
But Scholle, on appeal, cites to a different version of Exhibit 486
(the one labeled “Updated 11/05/2019”) that was supposedly
admitted and shows a total of $6,014,668.31 in past medical
expenses.
¶ 93 Determining who is correct here is not without difficulty. The
record is far from clear as to what version of Exhibit 486 was the
final one admitted at trial.
¶ 94 We can say what the record is clear about, though, and draw
some logical conclusions from it.
¶ 95 The record reflects that both Scholle and the defendants
uploaded “Exhibit – 486,” with the label “(Updated 11/05/2019),”
into the supplemental record on appeal; the uploaded Exhibit – 486
shows a total of $6,014,668.31 in past medical expenses.
¶ 96 But when Scholle testified, he said that Exhibit 486 “did not
include any bills” for “diabetes” or “hypertension or cholesterol,”
and that he’d taken “out from the [Hospital] bills the cost of the
original August 26, 2015, surgery” and a “back revision” occurring
on November 11, 2015. Counsel then attempted to ask, “And those
— taking out those bills, they totaled $477,000—” as a specific total
dollar amount of bills that were excluded, when a defense attorney
42
objected on foundation and relevance grounds.16 The court decided
that Scholle could testify as to what the bills were for but was “not
going to let [Scholle’s counsel] lead him through what the amounts
are[.]”
¶ 97 Simple math shows that $6,014,668.31 minus the
approximate figure of $477,000 that counsel was talking about
equals $5,537,668.30 — a figure very close to the $5,543,152 figure
appearing on the defendants’ version of Exhibit 486.
¶ 98 In closing argument, Scholle’s counsel pointed to Exhibit 486,
saying (1) Exhibit 486 was “the past medical [expenses] alone since
August 26, 2015[, which were] 5.5 million dollars”; and, (2) a few
pages of transcript later, that the total amount of expenses from the
expert report “was $5,543,151.74. . . . And you [i.e., the jury] can
take that forward as you see fit.” Further, in a responsive brief
post-trial, the defendants stated that during closing argument,
Scholle’s counsel handwrote this number “on the exemplar jury
form.”
16We acknowledge that, since counsel was cut off mid-sentence, the
“477,000” number is approximate.
43
¶ 99 On appeal, Scholle asserts that his counsel simply referenced
the wrong exhibit in closing argument. But the combination of
Scholle’s testimony, simple math, and Scholle’s closing argument
lead us to conclude that the “final” Exhibit 486 admitted into
evidence was the one to which the defendants direct this division’s
attention.
¶ 100 Consequently, because the evidence would support only an
award of $5,543,151.74, the jury’s award of $6 million must be
reduced (by $456,948) to that amount.17
VI. Trial Court’s Entry of Judgment
¶ 101 The defendants also contend the trial court erred by (1)
including prefiling interest in excess of the HCAA’s damages cap; (2)
17 We reject, however, the defendants’ separate assertion that
Scholle should not have been awarded the full amount of future
damages because, according to them, (1) Scholle’s “life care plan”
included $1,180,400 in identified (but unnecessary) items; and (2)
$383,411 in duplicative, future lost earnings. But, as Scholle
points out, the defendants’ arguments overlook (1) the economic
catastrophe Scholle and his family suffered; (2) evidence that
Scholle’s health needs would increase over time; and (3) the trial
court’s recognition that the jury awarded Scholle distinct amounts
for “future medical and other health care expenses” and “future lost
earnings and lost earning capacity. See Pressey v. Children’s Hosp.,
2017 COA 28, ¶ 47, overruled on other grounds by Rudnicki v.
Bianco, 2021 CO 80.
44
concluding that good cause existed to exceed the HCAA’s $1 million
damages cap, and without properly applying the HCAA’s collateral
source provision; and (3) not entering judgment nunc pro tunc. We
address each contention in turn.
A. The HCAA’s Damages Cap
¶ 102 The General Assembly enacted the HCAA to “assure the
continued availability of adequate health care services to the people
of this state by containing the significantly increasing costs of
malpractice insurance . . . .” § 13-64-102(1), C.R.S. 2021. In
furtherance of that purpose, the HCAA presumptively caps the total
damages a plaintiff can recover on a medical malpractice claim to
$1 million ($300,000 of which can be noneconomic damages). § 13-
64-302(1)(b), (1)(c).
B. Prefiling Interest
¶ 103 The defendants contend that the trial court erred in including
$1,429,832 in prefiling, prejudgment interest from the date of
Scholle’s surgery (August 26, 2015) to the date he filed his
complaint (May 11, 2017) in a judgment in excess of the HCAA’s
damages cap.
45
¶ 104 Section 13-21-101(1), C.R.S. 2021, governs interest on
damages in all personal injury actions: a plaintiff may claim interest
on damages from the date the action accrues until the date the suit
is filed (prefiling interest) and from the date the suit is filed to the
date judgment is satisfied (post-filing interest).
¶ 105 Section 13-64-302(2), however, provides that
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 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.
(Emphases added.)
¶ 106 According to the defendants, under this statute, “Scholle may
not recover prefiling interest in excess of the HCAA’s damage caps
under any circumstances.” We do not agree.
¶ 107 Damages 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,
46
subject to being uncapped upon a showing of good cause and
unfairness — unless there’s another statute saying otherwise.
There is no statute — nor case law18 — saying otherwise.
¶ 108 Consequently, the trial court did not err by considering the
prefiling, prejudgment interest as part of the damages award,
subject to being uncapped upon a showing of “good cause” and
“unfairness.”
C. Exceeding the HCAA’s Damages Cap and
Collateral Source Considerations
¶ 109 Section 13-64-302(1)(b) provides that
if, upon good cause shown, the court
determines that the present value of past and
future economic damages would exceed [the $1
million] 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.
(Emphases added.)
18As Scholle points out, the cases on which the defendants rely —
Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009), and Wallbank v.
Rothenberg, 74 P.3d 413 (Colo. App 2003) — involved appeals from
damage awards that the trial court had capped after finding no
good cause to exceed the cap.
47
¶ 110 In considering this provision, a division of our court, in
Wallbank v. Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006),
equated (1) “good cause” with a “substantial or legal justification, as
opposed to an assumed or imaginary pretense”; and (2) “unfair”
with “marked by injustice, partiality, or deception.” (Citations
omitted.) And because the statute doesn’t “specify factors that a
trial court must consider when determining whether a movant has
shown good cause or unfairness,” the division held that “a court
may exercise its discretion to consider factors it deems relevant
when determining whether the movant qualifies for . . . [an]
exception to the cap.” Id. at 180-81.
¶ 111 Scholle had the burden of establishing good cause and
unfairness under the statute. Id. at 180. According to the
defendants, Scholle provided no justification for an award in excess
of the damages cap beyond saying his damages were supported by
the evidence.
¶ 112 That’s not what the record reflects. In a written order, the trial
court found that, under the totality of the circumstances, good
cause existed for endorsing the jury’s award in excess of the
statutory cap because (1) the amount of the award was supported
48
by “credible, unrefuted evidence at trial”; (2) it would be
“fundamentally unfair” to limit the amount of damages due to the
“calamity” that occurred; (3) the medical costs imposed “a
significant financial burden” on Scholle and his family, as he was
the primary earner and had two minor children at home; (4) though
Scholle was fifty-seven years old, he sustained permanent injuries
which would prevent him from ever returning to a “career that he
enjoyed deeply”; (5) medical costs would “escalate” and would “only
increase over time” through the end of Scholle’s life; and (6)
considering that the bulk of these costs were “already-incurred
medical costs,” Scholle and his family lacked the means to earn
sufficient income to pay off those costs.
¶ 113 Here, there is no question but that the first five factors relied
on by the trial court were proper, supported by the record, and
sufficient to support the entry of judgment in excess of $1 million.
¶ 114 But what about the sixth factor of Scholle having to repay
“already-incurred” costs? Was it properly considered, and, if not,
does it call into question the propriety of the judgment entered by
the court?
49
¶ 115 A court abuses its discretion when it gives significant weight to
an improper or irrelevant factor, see, e.g., City of Duluth v. Fond du
Lac Band of Lake Superior Chippewa, 785 F.3d 1207, 1210-11 (8th
Cir. 2015), or when it relies on factual assertions not supported by
the record, Medina v. Conseco Annuity Assurance Co., 121 P.3d 345,
347 (Colo. App. 2005).
¶ 116 The HCAA “eliminates, to the extent possible, the likelihood
that health care providers will pay out large sums of money for
losses that will never actually be sustained by the tort victim.” Hill
v. United States, 81 F.3d 118, 120 (10th Cir. 1996). It does so, in
part at least, by requiring that, “[b]efore entering final judgment, the
court . . . determine the amount, if any due [to a] third party payer
or provider and enter . . . judgment in accordance with such
finding.” § 13-64-402(3), C.R.S. 2021.
¶ 117 Here, although Scholle served notice on third-party payers or
providers, as required by the HCAA under section 13-64-402(1),
none of them filed a “written notice of [a] subrogated claim,” as
required by section 13-64-402(2). The failure to file a notice of a
subrogation claim “shall constitute a waiver of such right of
subrogation as to such action” under section 13-64-402(2).
50
¶ 118 Courts may (and regularly do), however, address the impact of
waived claims on the rights of others. The defendants assert that
because third-party payers’ or providers’ waiver of subrogation
claims bars those parties’ ability to recover anything else from
Scholle, the court should have taken into account that Scholle owed
them nothing further.
¶ 119 Scholle asserts otherwise, relying on a holding from a division
of this court that the contract exception to the collateral source
statute applies to post-verdict proceedings seeking the reduction of
damages in medical malpractice actions. See Pressey v. Children’s
Hosp., 2017 COA 28, ¶¶ 17-22, overruled on other grounds by
Rudnicki v. Bianco, 2021 CO 80.
¶ 120 A collateral source is “a person or company, wholly
independent of an alleged tortfeasor, that compensates an injured
party for that person’s injury.” 6 David R. DeMuro, Colorado
Practice Series: Civil Trial Practice § 12.4, Westlaw (2d ed. database
updated Aug. 2021) (quoting Smith v. Kinningham, 2013 COA 103,
¶ 13). A collateral source is typically an entity such as an
insurance company or employer. Id.51
¶ 121 To prohibit, in some circumstances, a plaintiff’s double
recovery, the General Assembly legislatively enacted a “collateral
source” rule, which allows the court, after the jury has returned its
verdict stating the amount of damages to be awarded, to reduce the
amount of the verdict by the amount the plaintiff was indemnified
by a third party. § 13-21-111.6, C.R.S. 2021. The statute,
however, has an important exception (the contract exception):
the verdict shall not be reduced by the amount
by which such person . . . has been or will be
wholly or partially indemnified or compensated
by a benefit paid as a result of a contract
entered into and paid for by or on behalf of
such person.
Id.
¶ 122 The contract exception to the legislature’s collateral source
rule “prevent[s] a windfall to a tortfeasor when a plaintiff receive[s]
benefits arising out of the plaintiff’s contract.” Volunteers of Am.
Colo. Branch v. Gardenswartz, 242 P.3d 1080, 1085 (Colo. 2010).
But it
does not necessarily result in a plaintiff
receiving a double recovery because the
plaintiff must often subrogate the party with
whom they contracted. In a typical
subrogation framework, an insurer pays for
the injured plaintiff’s medical costs up front,
52
the plaintiff collects the cost of the treatment
from the tortfeasor under the contract
exception in section 13-21-111.6, and the
plaintiff then reimburses the insurer for the
cost of the treatment. So although the
contract exception prevents the trial court
from deducting from the plaintiff’s damages
the amount paid by a party with whom the
plaintiff has contracted, the plaintiff’s
subrogation obligation will generally prevent
double recovery.
Ronquillo v. EcoClean Home Servs., Inc., 2021 CO 82, ¶ 17 (citations
omitted).
¶ 123 In light of the contract exception, we agree with Scholle, to the
extent that he argues that a court cannot, as a matter of law,
reduce damages in excess of the damages cap because a plaintiff
owes nothing further with respect to past expenses or bills.
¶ 124 But that is not the same as saying that whether a plaintiff
owes money to third-party providers or payers isn’t a relevant
consideration in deciding to enter judgment in excess of the HCAA’s
$1 million damages cap. Otherwise, the language of section 13-64-
402(3) — requiring the entry of “judgment in accordance with [a]
finding” as to “the amount, if any due [to a] third party payer or
provider” — would have little, if any, purpose. Dep’t of Revenue v.
Agilent Techs., Inc., 2019 CO 41, ¶ 32 (avoiding a statutory
53
construction that would render a section meaningless); People v.
Gulyas, 2022 COA 34, ¶ 30 (“We must avoid constructions that
would render any words or phrases superfluous.”); Keysight Techs.,
Inc. v. Indus. Claim Appeals Off., 2020 COA 29, ¶ 12 (“A ‘cardinal
principle of statutory construction’ is that no clause, sentence, or
word is ‘superfluous, void, or insignificant.” (quoting Falcon
Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1, 2018
COA 92, ¶ 31)).
¶ 125 The trial court did not take subrogation interests (or the lack
thereof) into consideration in entering judgment because, it said,
none were asserted. But, the defendants insist, “the assumption
that [Scholle] was responsible for repaying past medical expenses
permeated the trial court’s order allowing such a high damage
award.” To this end, the trial court found (1) “[T]hese [past medical]
costs imposed a significant financial burden on [Scholle’s] family,
for whom he has been the primary income earner. . . . [Scholle] and
his family lack the means to earn sufficient income to repay his
already-incurred medical costs”; and (2) not allowing a recovery in
excess of the cap would “prevent [him] from recovering funds to
repay medical care he has already received.”
54
¶ 126 Contrary to one of the trial court’s findings, however, Scholle
did not produce any evidence that he owed any money to
third-party payers or providers. The trial court, then, should not
have taken this “fact” into consideration, much less given it
significance in entering judgment, and the court abused its
discretion in considering it. See City of Duluth, 785 F.3d at 1210-
11; Medina, 121 P.3d at 347.
¶ 127 The question at this point is whether the abuse of the court’s
discretion in this regard was prejudicial or harmless. See C.R.C.P.
61 (“[N]o error or defect in any ruling or order or in anything done
or omitted by the court . . . is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights
of the parties.”). This, in turn, depends on whether the court’s error
substantially influenced the outcome of the case. See Bernache v.
Brown, 2020 COA 106, ¶ 26.
55
¶ 128 If the record clearly shows that the trial court would have
reached the same result even without considering Scholle’s liability
for past expenses, then the error was harmless. Cf. People v.
Loveall, 231 P.3d 408, 416 (Colo. 2010) (evaluating the
harmlessness of improperly considering a particular ground as a
basis for revoking probation).
¶ 129 As we read the trial court’s order, the court’s improper
consideration of Scholle’s purported repayment obligations was a
significant factor in the decision to allow a judgment in excess of
the HCAA’s damages cap. We thus can say “with fair assurance
that the error substantially influenced the outcome of the case.”
See Johnson v. Schonlaw, 2018 CO 73, ¶ 11. Thus, the court’s
erroneous consideration of this factor cannot be considered
harmless.
¶ 130 The case must be remanded, then, for a re-assessment of
whether, under the circumstances, properly considered, there is
good cause to believe that the application of the HCAA’s damages
cap would be unfair.
56
D. Nunc Pro Tunc
¶ 131 The defendants contend that the trial court erred by failing to
enter judgment, as it said it would, nunc pro tunc to November 21,
2019, the date the jury returned its verdict. Instead, it entered
judgment nearly ten months later, on September 16, 2020.
¶ 132 The delay in entering judgment, the defendants say, resulted
in an additional “ten months of prejudgment interest, increasing the
final judgment by nearly $1 million.”
¶ 133 “Upon a general or special verdict of a jury, . . . the court shall
promptly prepare, date, and sign a written judgment and the clerk
shall enter it on the register of actions.” C.R.C.P. 58(a) (emphasis
added).
¶ 134 A ten-month delay in entering judgment could hardly be called
“prompt” action. Cf. Keenan ex rel. Hickman v. Gregg, 192 P.3d
485, 488 (Colo. App. 2008) (“[P]rompt” means “performed readily or
immediately; given without delay or hesitation.”) (citation omitted).
“The doctrine of nunc pro tunc permits a court to enter an order,
such as an order of final judgment, with an effective date earlier
than the actual date of entry. An entry of judgment nunc pro tunc
to a certain date is appropriate when the cause was ripe for
57
judgment on that earlier date. The doctrine of nunc pro tunc is often
used to ameliorate harm done to a party by court delays or clerical
errors.” Guarantee Tr. Life Ins. Co. v. Est. of Casper, 2018 CO 43,
¶ 27; see, e.g., Zuker v. Clerk-Magistrate, 673 N.E.2d 548, 552
(Mass. 1996) (A judgment nunc pro tunc can be entered “to prevent
a failure of justice resulting, directly or indirectly from delay in
court proceedings subsequent to a time when a judgment, order or
decree ought to and would have been entered, save that the cause
was pending under advisement.”) (citation omitted).
¶ 135 When a judgment is entered nunc pro tunc, postjudgment
interest begins to run on the judgment as of the earlier date. See
Stone v. Currigan, 138 Colo. 442, 449, 334 P.2d 740, 743 (1959).
¶ 136 “Application for . . . a judgment [nunc pro tunc] is addressed to
the sound discretion of the court.” Perdew v. Perdew, 99 Colo. 544,
547, 64 P.2d 602, 604 (1936). A court abuses its discretion if its
decision is manifestly arbitrary, unreasonable, or unfair, or if it
misapplies the law. AA Wholesale Storage, LLC v. Swinyard, 2021
COA 46, ¶ 32.
¶ 137 Citing Estate of Casper, ¶¶ 26-28, Scholle rather conclusorily
asserts that the trial court “could not legally have entered judgment
58
on verdict day because the verdict did not resolve the damages
available under the HCAA.” He doesn’t tell us why, though.
Presumably, it’s because the court had yet to determine (1) the
amount of applicable prefiling, prejudgment interest, which, as
noted earlier, would be part of the damages recoverable under the
HCAA; or (2) whether “good cause” existed to allow the jury’s award
of damages in excess of the HCAA’s damages cap. The first of
these, however, involved only a matter of mathematical calculation,
and the second (unlike in Estate of Casper) involved no potential for
an increase in allowable damages. Neither of these circumstances
would bar the entry of a nunc pro tunc judgment.
¶ 138 It is true, as Scholle points out, that much of the ten-month
period before the court entered judgment was taken up with
post-trial litigation over fees and costs, and collateral source and
subrogation issues. But ultimately, none of that affected the base
amount of damages awarded by the jury and, in turn, allowed by
the court.
59
¶ 139 Applying a 9% prejudgment interest rate on a base figure of
$13,345,931.31,19 the court (in its written, final judgment)
determined that, for the 300 days between the date of the verdict
and the date the judgment was entered, Scholle was entitled to
“postverdict,” prejudgment interest of $987,234.
¶ 140 However, had the court entered its judgment nunc pro tunc to
the day of the verdict (as the court, at one point, said it would do),
the “postverdict” interest on that same base amount for those 300
days would be considered “postjudgment” interest. Postjudgment
interest on money judgments that are appealed is, under section
13-21-101(3), “two percentage points above the discount rate,”
19As explained in the trial court’s written final judgment, this
“base” figure comprises
(1) The jury’s $9,292,887 award of damages;
(2) “pre filing interest” of a simple 9% interest rate on the jury
award, running from the date of the surgery to the date that
Scholle filed his complaint; and
(3) “post filing, pre judgment” interest, compounded annually at a
9% rate of the sum of (a) the original jury award plus (b) the
pre filing interest, running from the date Scholle filed his
complaint to the date the court entered final judgment (on
September 16, 2020).
60
which is the current market interest rate paid to the federal reserve
bank of Kansas City, and “rounded to the nearest full percent.”
¶ 141 According to the defendants in their reply briefs, the
applicable postjudgment interest rate is 2%. Using that rate on the
same base figure for the 300 days at issue, the postjudgment
interest figure would have been $219,384.
¶ 142 The difference between the figures representing post-verdict,
prejudgment interest and post-verdict, postjudgment interest is
$767,850.
¶ 143 The court’s explanation for not ultimately making the
judgment nunc pro tunc to the date of the verdict was that the court
wanted to enter only one final judgment. But the court could have
done so, effective as of the date of the verdict. And by doing so, the
court could have alleviated the harm done to the defendants as a
result of using a pre-, instead of a post-, judgment rate of interest.
¶ 144 The court’s failure to enter judgment nunc pro tunc, without a
good reason, was, in our view, manifestly unfair and thus an abuse
of discretion.
61
¶ 145 Consequently, the damages part of the judgment must be set
aside and re-calculated as if judgment was entered nunc pro tunc to
the date of the jury’s verdict.
VII. Disposition
¶ 146 The judgment is affirmed in part and reversed in part, and the
matter is remanded to the trial court with directions to, consistent
with the views expressed in this opinion, (1) reduce the amount of
the jury’s award for past medical expenses to $5,543,152; (2)
re-calculate the amount of prefiling, prejudgment interest and
include it, with the jury’s award, as damages; (3) reconsider
whether Scholle has shown good cause to conclude that application
of the HCAA’s $1 million damages cap would be unfair; and (4)
enter judgment, nunc pro tunc, as of the date of the jury’s verdict
(November 21, 2019).
JUDGE TOW concurs.
JUDGE BERGER concurs in part and dissents in part.
62
JUDGE BERGER, concurring in part and dissenting in part.
¶ 147 I agree with nearly all the majority’s analysis in this difficult
case. But, for two independent reasons, I respectfully disagree that
a remand is necessary for a re-assessment of whether to exceed the
$1 million cap under the Health-Care Availability Act (HCAA). See
supra Part VI.C. Instead, I believe the trial court’s decision was
within its broad discretion, and, in any event, any error was
harmless. I would therefore affirm the judgment subject to the
specific reductions addressed in the majority opinion.
I. The Majority’s Analysis
¶ 148 As the majority recites, the trial court relied on six express
factors to exceed the cap. Supra, ¶ 112. The majority agrees that
the trial court properly considered five of those factors and that
those factors support the trial court’s decision to exceed the cap.
Supra, ¶ 113. Nevertheless, the majority reverses the judgment.
The majority says that consideration of one of those factors
constituted an abuse of discretion. According to the majority, that
one factor requires that we remand this complex case to a new
63
judge (who has no background with the case) for reconsideration of
this quintessentially discretionary decision.1
¶ 149 The single factor with which the majority takes issue is factor
six: the trial court’s consideration of the supposed fact that the bulk
of these costs were “already-incurred medical costs” and that
“Scholle and his family lacked the means to earn sufficient income
to pay off those costs.” Supra, ¶ 112. The majority takes the trial
court to task on factor six because it says that Mr. Scholle
presented no evidence that he had owed any money to insurers or
other third-party payers. Supra, ¶ 126. The majority errs for two
reasons.
II. The Majority’s Analysis is Contrary to the Plain Language of
the Contract Exception to the Collateral Source Rule
¶ 150 First, the trial court did not abuse its discretion by considering
the sixth factor. The contract exception to the collateral source
statute required the court to disregard the fact (if it is a fact) that
Mr. Scholle or his estate had no out-of-pocket obligations to pay for
his past or future medical care.
1 The trial judge who allowed the judgment to exceed the cap has
retired.
64
¶ 151 In tort actions, a court must generally reduce the damages by
the amount the plaintiff was compensated by any other person,
except that
the verdict shall not be reduced by the amount
by which such person, his estate, or his
personal representative has been or will be
wholly or partially indemnified or compensated
by a benefit paid as a result of a contract
entered into and paid for by or on behalf of
such person.
§ 13-21-111.6, C.R.S. 2021.
¶ 152 The statute is broad and unambiguous: courts cannot reduce
a verdict by any amount paid as the result of a contract. It
contains no exception for when a third party fails to file a
subrogation notice under the HCAA with the trial court. The trial
court therefore properly considered Mr. Scholle’s medical expenses
without regard to insurance when it exercised its discretionary
authority to exceed the cap.
¶ 153 The majority claims to distinguish between a prohibited
reduction of the judgment based on collateral sources and
consideration of the amounts required to be paid by Mr. Scholle or
his estate for medical care. The majority agrees that “a court
cannot, as a matter of law, reduce damages in excess of the
65
damages cap because a plaintiff owes nothing further with respect
to past expenses or bills.” Supra, ¶ 123. But, the majority says,
“that is not the same as saying that whether a plaintiff owes money
to third-party providers or payers isn’t a relevant consideration in
deciding” whether to exceed the cap. Supra, ¶ 124.
¶ 154 In my view, that is a distinction without a difference. The
result is precisely the same. The majority reverses a principal
judgment of almost $10 million based on monies allegedly paid by
Mr. Scholle’s insurers and other third-party payers. Regardless of
how the majority attempts to sanitize it, that reduction violates the
collateral source statute.
¶ 155 Public policy goals of avoiding double recovery may favor the
majority. I acknowledge that for years well-meaning people have
disputed the public policy grounds supporting both the common
law and statutory collateral source rule. See Wal-Mart Stores, Inc. v.
Crossgrove, 2012 CO 31, ¶¶ 9-18 (explaining the evolution and
policy of the common law and statutory collateral source rule).
¶ 156 But the General Assembly has spoken, and our job is to apply
the statute, not create a judge-made exception because it may be
better policy. “Avoiding the possibility of an undesirable result by
66
essentially nullifying the [contract exception] would be tantamount
to disregarding the legislature’s intent.” People v. Weeks, 2021 CO
75, ¶ 43.
¶ 157 I also acknowledge that the interplay between the HCAA cap
provisions and the collateral source rule is not at all clear. But
when the General Assembly enacted the HCAA, it did not disturb
the contract exception. See Ch. 107, sec. 3, § 13-21-111.6, 1986
Colo. Sess. Laws 679; Ch. 100, sec. 1, § 13-64-402, 1988 Colo.
Sess. Laws 620. It surely could have, but it did not. We must
apply the contract exception as written. “Inartful drafting by the
legislature . . . doesn’t give us carte blanche to rewrite a statute.”
Weeks, ¶ 38; see also Prairie Mountain Publ’g Co. v. Regents of Univ.
of Colo., 2021 COA 26, ¶ 25.
¶ 158 For these reasons, the trial court did not abuse its discretion
by considering the sixth factor and allowing the judgment to exceed
the cap.
III. The Other Five Factors Independently Support Exceeding the
Cap
¶ 159 Regardless of who’s right concerning the trial court’s analysis
of the sixth factor, a remand to determine whether to exceed the
67
cap is not necessary. The majority says it has “fair assurance that
the error substantially influenced the outcome of the case.” Supra,
¶ 129 (quoting Johnson v. Schonlaw, 2018 CO 73, ¶ 11).
¶ 160 I disagree. In my view, given the other valid reasons for
exceeding the cap, any error by the court regarding factor six did
not substantially influence the outcome. The first five factors “were
proper, supported by the record, and sufficient to support the entry
of judgment in excess of $1 million” independent of factor six.
Supra, ¶ 113.
¶ 161 Most importantly, the jury’s award was not based on past
medical expenses alone: $2.6 million of the $9 million principal
verdict were for future medical expenses. Supra, ¶ 11, n.3. The trial
court relied on this fact as the fifth factor for exceeding the $1
million cap under the HCAA.
¶ 162 Even if Mr. Scholle had no obligation to pay even one dollar to
his medical providers for his past medical care, that fact is not
dispositive of whether Mr. Scholle had an obligation to pay for part
or all of his future medical care. To the contrary, it is purely
speculative to assume that Mr. Scholle would not bear that cost. It
is simply too much to expect the trial court to ascertain with any
68
certainty the extent to which Mr. Scholle would be liable for future
medical costs.
¶ 163 The trial court was therefore well within its authority in
inferring that Mr. Scholle would need to pay for his lifetime future
medical care (which, according to the jury’s award, exceeded the
cap by more than $1.5 million). Accordingly, based on factor five
alone, any error regarding factor six did not substantially influence
the trial court’s decision to exceed the cap.
¶ 164 There are still four other factors on which the trial court relied
to exceed the cap. The court found the amount of the award was
supported by the evidence, that it would be fundamentally unfair to
limit the damages, that Mr. Scholle carried a significant financial
burden, and that he could not return to his chosen career. Supra,
¶ 112.
¶ 165 When these other factors are combined with Mr. Scholle’s
future medical costs (as determined at the time of trial), there is no
doubt in my mind that the trial court would have exercised its
authority to exceed the cap in the absence of factor six.
69
IV. Conclusion
¶ 166 For these reasons, I concur in part and respectfully dissent in
part. I concur in all portions of the majority’s opinion, except its
cap analysis and its disposition in remanding the cap determination
to the trial court.
70