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Gresser v. Banner Health.

2023 COA 108. No. 22CA1502. Health Care Availability Act Liability Limit—Award in Excess of Limitation—Expert Testimony—Suggestion of Collusion.

November 16, 2023

The Gresser’s daughter C.G. was born at Banner Health, d/b/a North Colorado Medical Center (Banner Health). The day after she was born, C.G. was transferred to the neonatal intensive care unit, where she received antibiotics to treat a possible infection. The following morning, lab results confirmed that C.G. had an E. coli infection, and she had developed sepsis. As a result, she suffered irreversible neurological injuries, including cerebral palsy and cognitive and developmental delays. The Gressers, individually and on behalf of C.G., brought a medical negligence claim against Banner Health alleging failure of its nursing staff to timely recognize and report to C.G.’s treating physicians that C.G. was showing signs of sepsis. The jury found that Banner Health was negligent and that its negligence proximately caused C.G.’s injuries. The jury awarded the Gressers $27,647,274.23 in damages, which included past and future medical and other health care expenses to 2075, and lost future wages from 2038 to 2070. After the jury verdict, the trial court concluded that it was required to (1) impose the $1 million Health Care Availability Act (HCAA) cap on damages or (2) enter a judgment in the amount that the jury had calculated for past and future economic damages. The trial court chose the latter option and entered a total judgment of $39,845,196.83, consisting of the jury’s award and pre- and post-filing interest.

On appeal, Banner Health contended that the trial court erred by misinterpreting CRS § 13-64-302(1)(b) to permit only a binary choice between enforcing the statutory cap or awarding the full amount that the jury determined and thus failed to consider the totality of the circumstances in its good cause and unfairness analysis. The HCAA caps at $1 million tort damages awardable against defendants for a course of care provided to a patient by a healthcare professional or a healthcare institution. The HCAA also allows a trial court to lift the cap to award the present value of additional past and future economic damages in limited circumstances for good cause. But once a court makes the appropriate findings and lifts the cap, the HCAA is silent on how the court must determine the amount of such excess damages. The court of appeals determined that, after making the necessary findings to exceed the statutory cap, a trial court may, but is not required to, award additional damages in the amount that the jury determined. Here, although the court erred by believing it had only a binary choice in awarding additional damages to the Gressers, it conducted the correct analysis in quantifying the amount of such damages based on ample record evidence. Therefore, it did not abuse its discretion by finding that the Gressers demonstrated good cause for exceeding the cap and that application of the cap would be unfair.

Banner Health also argued that the trial court erroneously allowed the Gressers’ witness Dr. Rimawi to provide expert testimony on causation, and that the court should have entered judgment notwithstanding the verdict in its favor because Dr. Rimawi was the Gressers’ only causation expert and, without his testimony, they could not prove their negligence claim. However, Dr. Rimawi possessed the requisite knowledge, skill, experience, training, and education in infectious diseases and on sepsis and its treatment and management to provide expert testimony on causation. And Dr. Rimawi did not testify outside the scope of those subject areas in which the court had qualified him as an expert. Further, because Dr. Rimawi was qualified to opine on causation, the court properly denied Banner Health’s motion for judgment notwithstanding the verdict premised on Dr. Rimawi’s alleged lack of sufficient knowledge and experience. Accordingly, the trial court did not err in allowing Dr. Rimawi’s testimony.

Banner Health further contended that the trial court erred by precluding Banner Health’s economist from providing opinion testimony regarding the present value of C.G.’s future life care plan assuming a life expectancy of 58. At trial, counsel for Banner Health asked its expert economist, Dr. Drabkin, to opine on the present value of C.G.’s life care plan based on a life expectancy of 58 years. The court sustained the Gressers’ objection to the testimony because Banner Health had not previously disclosed this present value figure to the Gressers. Here, the court did not abuse its discretion by precluding Dr. Drabkin’s testimony because (1) Dr. Merritt, the Gressers’ disclosed expert, did not accept the assumptions underlying a conclusion that C.G. would only live to 58; and (2) Banner Health was aware of the 58-year figure during Dr. Merritt’s deposition and it could not claim surprise regarding the figure being discussed at trial. Further, applying the factors under Todd v. Bear Valley Village Apartments, 980 P.2d 973, 975 (Colo. 1999), for evaluating the trial court’s sanction for a discovery violation, the court’s ruling on the admissibility of Dr. Drabkin’s new opinion was not manifestly arbitrary, unreasonable, or unfair, and therefore was not an abuse of discretion.

Banner Health also asserted that the trial court erred by permitting the Gressers’ counsel to insinuate that Banner Health’s attorneys and their client-witnesses colluded to fabricate testimony. Banner Health maintained that the court should have given a curative jury instruction addressing the impropriety of the suggestions of collusion or, alternatively, should have taken the case away from the jury and entered a judgment in favor of Banner Health, because the insinuations deprived Banner Health of a fair trial. Here, while the Gressers’ counsel walked a fine line in aggressively questioning Banner Health’s witnesses, the court did not abuse its discretion in evaluating the risk of prejudice to Banner Health resulting from the challenged questioning and selecting appropriate remedies in response to the Gressers’ counsel’s insinuation of collusion between Banner Health’s witnesses and lawyers. Accordingly, the trial court did not err, and Banner Health’s request for a new trial is unsupported.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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