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Scholle v. Ehrichs.

2022 COA 87. No. 20CA2051. Health-Care Availability Act—Damages—Limitation of Liability—Collateral Source Evidence—Contract Exception.

July 28, 2022

Scholle was severely injured as a result of elective back surgery performed by Doctors Ehrichs and Rauzzino at HCA-HealthONE, LLC, d/b/a Sky Ridge Medical Center (the Hospital). Two years after the surgery, Scholle filed the present medical malpractice action against Drs. Ehrichs and Rauzzino and the Hospital (collectively, defendants). After a 22-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. The trial court stated that it would subsequently (1) adjust the jury’s award of damages in accordance with the Colorado Health-Care Availability Act (HCAA) and (2) enter judgment nunc pro tunc to the day of the jury’s verdict, for purposes of calculating interest. Approximately three months after the jury’s verdict, the trial court, in a written order, found that good cause existed for allowing damages in excess of the $1 million HCAA cap. Nearly 10 months after the jury’s 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.

On appeal, Dr. Rauzzino contended 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 physician assistant during surgery, and using the Medtronic device. Here, there was testimony that the standard of care in the presence of elevated A1C levels required a postponement of surgery and that the Medtronic device had not been seated properly. Therefore, the trial court properly denied the motion for directed verdict with respect to this part of Scholle’s case.

The Hospital contended that the trial court erred by denying its motion for directed verdict because it did not breach any duty to provide adequate blood products, regardless of whether a massive transfusion protocol was activated. The Hospital did not dispute that it had a legal duty to have adequate blood products on hand to respond to an emergency involving excessive blood loss during surgery. Rather, it maintained that Scholle’s claims against the Hospital were premised on facts demonstrably proven to be false. However, the 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.

The Hospital also argued that it had no duty to stock EVAR arterial stents and any negligence on its part was not a proximate cause of Scholle’s injuries. 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, EVAR kits. Further, Scholle presented evidence that the Hospital’s failure to stock the EVAR kits was a proximate cause of Scholle’s injuries; a reasonable inference could be made that, but for the kits not being immediately in stock and available, Scholle would have experienced massive blood loss for less time, and consequently, the extent of his injuries would have been less severe. Therefore, the Hospital was not entitled to a directed verdict on this ground.

Defendants contended that the trial court reversibly erred by instructing the jury on physical impairment as a category of damages separate and apart from noneconomic damages. 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; instead, the court should have referenced it, if at all, under the noneconomic category of damages. However, the error was harmless, given the jury’s award of $0 in noneconomic damages.

Defendants also contended that the trial court erroneously gave the jury a “thin-skull plaintiff” instruction. A thin-skull instruction is appropriate in tort cases when the defendant seeks to avoid or reduce liability by calling attention to the plaintiff’s preexisting conditions or predisposition to injury and asserts that the plaintiff’s injuries would have been less severe had the plaintiff been an average person. Here, on cross-examination, defense counsel asked a question 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. Because that one question raised thin-skull issues, the court did not abuse its discretion by giving the jury a thin-skull instruction. Even if the court erred, defendants failed to demonstrate how they may have been prejudiced as a result of the instruction.

The Hospital also contended that the court incorrectly provided a negligence per se instruction to the jury 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. However, the Hospital did not object on this ground at trial, so the Court of Appeals declined to address this new argument.

Defendants also argued that the trial court erred in refusing to strike $456,848 in past medical expenses as lacking any evidentiary support. Here, the evidence supports only an award of $5,543,151.74, so the jury’s award of $6 million must be reduced by $456,948 to that amount.

Defendants further argued 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. Prefiling, prejudgment interest is part of “damages” capped under the HCAA, subject to being uncapped upon a showing of good cause and unfairness, unless another statute provides otherwise. There is neither a statute nor case law stating otherwise, so 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.

Defendants also argued that the trial court erred by concluding that good cause existed to exceed the HCAA’s $1 million damages cap, and without properly applying the HCAA’s collateral source provision. A court may exercise its discretion to consider factors it deems relevant when determining whether a movant qualifies for an exception to the cap. Here, while some factors the court relied on were proper, Scholle did not produce evidence that he owed money to third-party payers or providers. Therefore, the trial court should not have taken this “fact” into consideration and thus abused its discretion in considering it. Further, 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 and was therefore not harmless.

Lastly, defendants contended 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 10 months later, on September 16, 2020, which resulted in additional prejudgment interest and increased the final judgment by nearly $1 million. Here, the court’s failure to enter judgment nunc pro tunc, without a good reason, was manifestly unfair and thus an abuse of discretion. Consequently, the damages part of the judgment must be set aside and recalculated as if judgment was entered nunc pro tunc to the date of the jury’s verdict.

The judgment was affirmed in part and reversed in part, and the matter was remanded with directions.

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

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