Kahm v. Hospice of Metro

25CA1102 Kahm v Hospice of Metro 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1102
City and County of Denver District Court No. 24CV31249
Honorable Christopher J. Baumann, Judge

Karla Kahm, individually and as heir at law of Richard Kahm, deceased,

Plaintiff-Appellant,

v.

Hospice of Metro Denver, Inc., d/b/a The Denver Hospice, a Colorado nonprofit
corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE MOULTRIE
Gomez and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 28, 2026

Law Offices of J.M. Reinan, P.C., Jerome M. Reinan, Jordana Griff Gingrass,
Denver, Colorado, for Plaintiff-Appellant

Hall Booth Smith, P.C., Brenda S. McClearn, Greenwood Village, Colorado, for
Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Plaintiff, Karla Kahm, appeals the trial court’s judgment

denying various pretrial motions. We affirm.

I. Factual Background

¶2 Karla1 is the daughter and heir at law of Richard Kahm. Karla

became Richard’s primary caregiver after he was diagnosed with

dementia. In November 2023, Karla, as Richard’s medical proxy,

consented to Richard receiving hospice services from The Denver

Hospice (TDH). He received in-home hospice services until

mid-December when Karla admitted him to TDH’s inpatient care

center (ICC) for a short respite stay.

¶3 At the time of Richard’s admission, Karla signed documents

authorizing TDH to provide Richard with medications that would

maximize his comfort level. TDH’s clinical notes about Richard

state that, while at home, he was being treated for various ailments

including agitation but was refusing medications. Upon Richard’s

admission to the ICC, nurse practitioner Tracy Fehr examined

Richard. She created a medication plan of care that included,

1 To avoid confusion between those who share a last name, we refer

to parties in this opinion by their first names. We intend no
disrespect in doing so.

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among other things, Ativan for anxiety, Haldol for agitation, and

morphine for pain.

¶4 Karla called TDH shortly after Richard’s admission into the

ICC and told one of the nurses that Haldol had a paradoxical effect

on Richard, meaning he would become violent. Nevertheless, TDH

providers administered Ativan, Haldol, and morphine (collectively,

the sedating medications) to Richard twice during his first and

second days in the ICC. When Karla called TDH on the second day

and spoke to nurses, she expressed that she was upset about the

medications they were giving Richard and said that Ativan also had

a paradoxical effect on Richard. She requested that providers stop

giving him medications. Clinical notes from various nurses stated

that Richard didn’t exhibit a paradoxical effect to Ativan or Haldol;

rather, he showed a good response to receiving those medications

after showing signs of anxiety and restlessness.

¶5 Providers didn’t give Richard Ativan or Haldol on the third day,

but they did give him morphine. At the end of Richard’s third day

in the ICC, Karla revoked her consent to hospice services and had

Richard transferred to a hospital to receive fluids due to her

concern that Richard had become dehydrated during his stay in the

2
ICC. Shortly thereafter, Richard was admitted into a rehabilitation

facility operated by the Julia Temple Center (JTC).

¶6 In January 2024, while Richard was in JTC’s care, he fell and

broke his hip, which required surgery. He passed away

approximately four months later.

II. Procedural Background

¶7 In April 2024, shortly before Richard passed away, Karla filed

a complaint, as Richard’s next friend,2 against TDH and JTC. In

the initial complaint, Karla asserted negligence claims against both

TDH and JTC, and breach of fiduciary duty and breach of contract

claims against TDH. A month later, and after Richard had passed

away, she filed a first amended complaint and amended the

negligence claims to wrongful death claims.

¶8 The court set a nine-day jury trial for June 2025. The parties

filed a proposed joint case management order (CMO), which the

court adopted in June 2024 after modifying the parties’ proposed

dates for expert report disclosures and the close of discovery. Per

the CMO, discovery closed at the end of April 2025.

2 C.R.C.P. 17(c) allows an incompetent person’s representative to

sue on their behalf as their “next friend.”

3
¶9 About six months before trial, JTC reached a settlement with

Karla and was dismissed from the case. Around the same time,

Karla’s counsel deposed Dr. Kimberly Bennett — Richard’s hospice

physician while he was receiving in-home services — and Ernesto

Lopez — TDH’s president. Karla’s counsel also scheduled taking

Fehr’s deposition. However, because the parties had mediation

scheduled for early March 2025, counsel for both parties agreed to

postpone Fehr’s deposition until after mediation.

¶ 10 About a week and a half after the unsuccessful mediation,

Karla filed a “Motion for Leave to Amend Complaint” (motion to

amend), a proposed second amended complaint, and a “Motion for

Continuance of Trial and Existing Case Management Deadlines”

(motion to continue). In the motion to amend, Karla sought to

dismiss the wrongful death and breach of contract claims and add

four new claims — violation of the Colorado Consumer Protection

Act, fraud, extreme and outrageous conduct, and civil conspiracy.

She also sought to add a claim for exemplary damages under

section 13-64-302.5(3), C.R.S. 2025, and to add Fehr as a

defendant.

4
¶ 11 In support of the request to amend her complaint, Karla

argued that JTC’s dismissal required her to “reformulate the facts

and claims” in her first amended complaint. She also argued that

there was a “significant change” in her “understanding of the facts

gained through discovery” and that the depositions “unveiled facts

previously unknown that require[ed] her to amend her [c]omplaint

to allege those facts and the new claims that accompany those

facts.” Specifically, she asserted that she had learned that TDH

had a “standing order” to give all patients, regardless of consent,

the sedating medications upon their admission to the ICC. She

argued that because the new evidence changed the way she needed

to take discovery and prepare for trial, she also needed to continue

the June 2025 trial dates and reset the discovery deadlines.

¶ 12 A couple of days later, and on the same date that expert

disclosures were due, Karla’s counsel filed a motion requesting to

stay the deadline for disclosing experts (motion to stay deadlines)

pending the court’s ruling on her other motions.

¶ 13 TDH opposed the motions. It argued that the court should

deny the motion to amend based on Karla’s undue delay, undue

prejudice, and futility of amendment. TDH argued the court should

5
deny the motions to continue and to stay because Karla hadn’t

demonstrated good cause for either request. TDH also filed a

motion for summary judgment, noting that Karla needed expert

testimony to support her claims, but she hadn’t disclosed any

experts before the disclosure deadline passed.

¶ 14 The court held a hearing on Karla’s motions a month before

the scheduled start of the jury trial. The court said that it

understood the basis for Karla’s request for a continuance to be her

assertion that she learned “new information” from Lopez’s

deposition and during mediation that TDH had “a standing order to

medicate all of its patients, sedating them upon admission.” The

court asked Karla’s counsel to direct it to a specific page where

Lopez indicated that TDH had a standing order for the sedating

medications.

¶ 15 Karla’s counsel admitted that they couldn’t pinpoint any place

in Lopez’s deposition where he admitted that a standing order to

administer the sedating medications existed. Instead, Karla’s

counsel argued that amending her complaint and continuing the

trial were necessary because, during a predeposition meeting that

Karla recorded, Lopez said that Richard was “mistakenly”

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administered the sedating medications contrary to Karla’s consent;

then Lopez, in a subsequent deposition, “backed-off” that position

but acknowledged that Richard was given the sedating medications

because Fehr deemed those medications appropriate; and later

during mediation, TDH posited it had a standing order to medicate

people upon admission to the ICC.

¶ 16 For its part, TDH denied that a standing order for the sedating

medications existed, which it informed Karla of in its response to

the written discovery requests she issued after the depositions and

mediation. TDH asked the court to deny Karla’s motions because

her motions weren’t “based on learning any new information” but

rather were based on “new ideas in [p]laintiff’s counsel’s head based

on old evidence.”

¶ 17 After hearing argument from counsel for both parties, the

court denied Karla’s motions. In denying the motion to amend, the

court said it couldn’t conclude that Karla learned new information

during discovery that would support amending her complaint. The

court noted that, although the parties disputed the reason why

TDH administered the sedating medications to Richard, the fact

that the medications were administered without Karla’s consent

7
was information contained in the first amended complaint. The

court found that resolving any inconsistencies in Lopez’s

statements was up to the jury.

¶ 18 The court also determined that Karla’s resolution of her claim

against JTC didn’t warrant allowing her to rewrite her complaint to

add multiple new claims against TDH. Likewise, the court found

that Fehr had been a central figure from the outset of the case, so

amending the complaint to add her as a defendant wasn’t

warranted because it would double the claims and “significantly

expand[] the litigation.”

¶ 19 The court said it would revisit Karla’s request to add

exemplary damages if evidence of willful and wanton conduct came

out at trial.

¶ 20 Because the court concluded that new information hadn’t

been uncovered during discovery, it found that Karla hadn’t

established good cause to continue the trial or conduct further

discovery.

¶ 21 Karla’s counsel acknowledged the court’s rulings and

expressed concerns about their ability to move forward on her

existing claims without expert witnesses. Thus, at the conclusion

8
of the hearing, Karla’s counsel withdrew the wrongful death claim.

Shortly after the hearing, Karla voluntarily withdrew the breach of

contract claim and, because Karla conceded expert testimony was

necessary to support the breach of fiduciary claim, the court

concluded that Karla had effectively confessed TDH’s motion for

summary judgment.3 Karla filed an unopposed motion for

certification under C.R.C.P. 54(b), which the court granted.

Although the court improperly certified the judgment under Rule

54(b),4 it alternatively granted TDH’s motion for summary

judgment. As a result, the court’s order was a final judgment

because it resolved Karla’s only remaining claim — breach of

3 A party is entitled to summary judgment when there is no genuine

issue as to any material fact and the moving party is entitled to
judgment as a matter of law. C.R.C.P. 56(c); Miller v. Van Newkirk,
628 P.2d 143, 145 (Colo. App. 1980); see also Martinez v. Badis,
842 P.2d 245, 252 (Colo. 1992) (“[T]he plaintiff alleging a breach of
fiduciary duty arising from [a professional] relationship must
establish by means of expert testimony the applicable standard of
care and the defendant’s failure to adhere to that standard of
care.”).
4 “C.R.C.P. 54(b) requires, among other things, that an entire claim

for relief be finally adjudicated.” Wilson v. Kennedy, 2020 COA 122,
¶ 30 (quoting Harding Glass Co. v. Jones, 640 P.2d 1123, 1127
(Colo. 1982)).

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fiduciary duty. Accordingly, this court has jurisdiction to consider

Karla’s appeal.

¶ 22 Karla argues that the court abused its discretion by denying

her motions to amend and to continue and by prohibiting her from

conducting additional discovery. Because we disagree, we affirm

the judgment.

III. Applicable Legal Principles

A. Amending Pleadings

¶ 23 C.R.C.P. 15(a) requires parties to obtain court authorization to

amend pleadings in certain instances. “[T]rial courts are

encouraged to look favorably on requests to amend pleadings.” Am.

C.L. Union of Colo. v. Whitman, 159 P.3d 707, 712 (Colo. App. 2006);

see C.R.C.P. 15(a) (leave to amend pleadings “shall be freely given

when justice so requires”). Whether a court should grant a

plaintiff’s request for leave to amend depends on the specific facts

and circumstances of the case. Benton v. Adams, 56 P.3d 81, 86

(Colo. 2002).

¶ 24 Although leave should be given freely, a court may deny a

request for leave to amend because of “undue delay, bad faith,

dilatory motive, repeated failure to cure deficiencies in the pleadings

10
via prior amendments, undue prejudice to the opposing party, and

futility of amendment.” Id. But see Eagle River Mobile Home Park,

Ltd. v. Dist. Ct., 647 P.2d 660, 663 (Colo. 1982) (“[D]elay alone,

without any specifically resulting prejudice . . . generally is not a

sufficient basis for precluding a party from amending its

complaint.” (citation modified)).

¶ 25 To avoid undue delay, “[p]arties should join issues and other

parties needed for just and efficient resolution of the case as early

as practicable in the litigation.” Benton, 56 P.3d at 88. A trial court

may properly deny a motion to amend when a moving party knew

the basis for the amendment when they filed their original pleading

and failed to state an acceptable reason for the delay in bringing the

proposed amendment. Polk v. Denv. Dist. Ct., 849 P.2d 23, 27

(Colo. 1993).

¶ 26 The court “must assess the motion to amend in light of the

totality of the circumstances,” meaning “[i]t must balance the policy

favoring the amendments of pleadings against the burdens which

granting the amendment may impose on the other part[y].” Id. at

26.

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B. Exemplary Damages Under Section 13-64-302.5(3)

¶ 27 When a plaintiff asserts a negligence claim against a

healthcare professional, they may seek to amend their pleadings to

include a request for exemplary damages under section

13-64-302.5(3), but “only after substantial completion of discovery

and only after the plaintiff establishes prima facie proof of a triable

issue.” § 13-64-302.5(3). If the court allows the plaintiff to amend

their complaint, then “it may also, in its discretion, permit

additional discovery on the question of exemplary damages.” Id.

¶ 28 “Prima facie proof of a triable issue of exemplary damages is

established by a showing of a reasonable likelihood that the issue

will ultimately be submitted to the jury for resolution,” which “may

be established through discovery, by evidentiary means, or by an

offer of proof.” Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007)

(citation modified).

C. Requests for Continuance

¶ 29 A party’s motion to continue must be supported by good

cause. See C.R.C.P. 121 § 1-11. “Good cause exists when there are

unforeseen and exceptional circumstances requiring a

12
continuance.” Miller v. Brannon, 207 P.3d 923, 932 (Colo. App.

2009).

¶ 30 “In determining whether to grant a continuance, the court

should consider the circumstances of the particular case, weighing

the right of the party requesting the continuance to a fair hearing

against the prejudice that may result from delay.” Butler v. Farner,

704 P.2d 853, 858 (Colo. 1985); see also Miller, 207 P.3d at 932

(“[A] court should be mindful of the problems associated with a

delay of trial, including devaluation of a judgment, anxiety in

litigants, uncertainty for lawyers, loss and deterioration of evidence,

waste of court resources, increase of the costs of litigation, and

confusion and conflict in the allocation of court resources.”).

D. Standard of Review

¶ 31 The decision to grant or deny a motion for leave to amend a

complaint, to add exemplary damages, or to continue trial is left to

the sound discretion of the trial court. See Polk, 849 P.2d at 25

(abuse of discretion standard for pleading amendments); Stamp,

172 P.3d at 449 (abuse of discretion standard for ruling on

exemplary damages amendment); Todd v. Bear Valley Vill.

Apartments, 980 P.2d 973, 976 (Colo. 1999) (abuse of discretion

13
standard for continuances). A court abuses its discretion when its

ruling is “manifestly arbitrary, unreasonable, or unfair” or when it

misapplies the law. Rains v. Barber, 2018 CO 61, ¶ 8 (citation

omitted).

IV. The Court Didn’t Abuse Its Discretion When It Denied Karla’s
Motions

A. Motion to Amend

¶ 32 Karla contends the court erred by denying her motion to

amend because (1) the discovery of new information necessitated

her amendment; (2) the court didn’t find that her amendment was

brought in bad faith or through misconduct; and (3) the court didn’t

analyze her request to add exemplary damages. We disagree with

each of her contentions.

¶ 33 As an initial matter, we reject Karla’s assertion that our review

of the court’s determination of her request to amend her complaint

to add exemplary damages involves a mixed question of fact and

law. Because we aren’t reviewing the court’s statutory

interpretation of section 13-64-302.5(3), we review the court’s

determination for an abuse of discretion. See Stamp, 172 P.3d at

449.

14
1. Alleged New Information

¶ 34 Karla asserts that she didn’t allege facts that TDH had a

“policy or practice of sedating all of its ICC patients on admission”

in her first amended complaint because she only learned of this

“new information,” which formed the factual basis for the new

claims, through depositions and mediation. She similarly asserts

that information she learned during Lopez’s deposition required her

to join Fehr as a defendant because she previously believed that

Fehr’s medication order was a mistake rather than intentional.

Karla thus argues that “[t]he district court’s findings and

conclusions are both contrary to the weight of the record evidence

and unreasonable in context.” We aren’t persuaded.

¶ 35 The court’s findings reflect that it thoroughly reviewed the

pleadings and depositions submitted by the parties before the

hearing and ultimately concluded that Karla’s motion to amend was

unduly delayed, which caused undue prejudice to TDH.

¶ 36 As the court noted, Karla already knew that TDH staff

intentionally administered the sedating medications to Richard

because that information was included in her first amended

complaint. The record shows that Karla requested Richard’s

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medical records from TDH days after she revoked hospice services,

which was approximately four months before she initiated litigation.

¶ 37 The record also refutes that Karla learned through the

depositions that there was a standing order. Indeed, Karla’s

counsel couldn’t identify in the deposition testimony submitted to

the court where TDH, through Lopez or otherwise, made such an

admission. And, even assuming without deciding, that a standing

order existed and that Karla learned of its existence during the

March 2025 mediation, she doesn’t explain why she didn’t attempt

to conduct discovery earlier in the case when the discovery

deadlines were established in June 2024. See Benton, 56 P.3d at

88; Union Ins. Co. v. Kjeldgaard, 820 P.2d 1183, 1186 (Colo. App.

1991) (A party who makes a belated request for leave to amend has

the burden of demonstrating a justification — such as lack of

knowledge, mistake, inadvertence, or some other reason — for the

untimely request). Likewise, Karla knew about Fehr’s involvement

in administering Richard’s medications before she initiated

litigation and could have joined Fehr at the outset of the litigation

or in her first amended complaint. See Benton, 56 P.3d at 88.

16
¶ 38 In objecting to the motion to amend, TDH argued that it would

be prejudiced because the new claims would “significantly alter the

basic thrust” of the relief Karla sought, require it to substantially

change the defense it had been preparing for nearly a year, and

potentially expose it to exemplary damages in the form of punitive

or treble damages. And it asserted that, because Karla’s new claims

were based on information known to her throughout the case, they

would be prejudiced by not being able to proceed to trial as

scheduled.

¶ 39 The court ultimately found that granting Karla’s motion to

amend would “significantly” expand the litigation by adding twice as

many claims and going “down a road that [Karla] had not previously

[] sought.” Karla doesn’t challenge this finding, other than to say

that any prejudice could have been mitigated by a continuance.

But this argument misses the point — part of the prejudice to TDH

was that it was ready to proceed to trial on the scheduled date. And

a continuance only mitigates prejudice to an opposing party if the

prejudice asserted is an inadequate amount of time to prepare.

Eagle River, 647 P.2d at 663-64.

17
¶ 40 Thus, the court’s implicit findings that Karla’s motion to

amend was unduly delayed and unduly prejudicial are

record-supported. Accordingly, we conclude that the court didn’t

abuse its discretion by denying the motion to amend. See Foster v.

Phillips, 6 P.3d 791, 796 (Colo. App. 1999); see also Polk, 849 P.2d

at 28 (where a party fails to provide a reasonable excuse for their

untimely motion for leave to amend, “[t]he policy favoring

amendment of pleadings does not prevail”).

2. Failure To Address Bad Faith or Misconduct

¶ 41 Karla argues that “[c]learly-established law stands for the

proposition that a district court should not deny a motion to amend

a complaint in the absence of some sort of dilatory or bad faith

conduct by the moving party.” We disagree.

¶ 42 Karla doesn’t provide any authority for the proposition that a

court must first find a moving party requested leave to amend in

bad faith or through misconduct before it can deny a motion to

amend. Rather, as we addressed above, the combination of undue

delay and prejudice to the opposing party is sufficient to support

the court’s denial. See Benton, 56 P.3d at 86; Eagle River, 647 P.2d

at 663.

18
3. Exemplary Damages

¶ 43 Karla argues that because section 13-64-302.5(3) requires

substantial completion of discovery before exemplary damages may

be sought, she couldn’t move to amend the complaint to add a

request for exemplary damages until after she conducted

depositions. She further argues that the court erred by indicating

that it would reconsider her request for exemplary damages if willful

and wanton evidence came out at trial because the statute allows

additional discovery, and she couldn’t conduct additional discovery

during trial.5

¶ 44 But, as we’ve just concluded, the court didn’t err by declining

to allow Karla to amend her complaint a second time. Because her

request to add a claim for exemplary damages was one of her

proposed amendments, we don’t address this issue further. See

Sedgwick Props. Dev. Corp. v. Hinds, 2019 COA 102, ¶ 31 (noting

5 She also argues that the court didn’t consider section

13-64-302.5(3), C.R.S. 2025, when it found that she could have or
should have brought her exemplary damages claim in the original
or first amended complaint. But the court didn’t make such a
finding. Accordingly, this argument is unsupported and
conclusory, and we won’t consider it. See Barnett v. Elite Props. of
Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010).

19
that the “cardinal principle of judicial restraint” is not deciding

issues unnecessary to the resolution of the case).

B. Motion to Continue

¶ 45 Finally, Karla argues that the court abused its discretion when

it denied her motion to continue. Karla again relies on her

argument that she learned new facts from Lopez’s deposition, which

she asserts required her to take additional discovery for the purpose

of proving exemplary damages and uncovering the nature and

extent of TDH’s standing policy. She also argues that a

continuance was necessary for her to develop expert testimony that

she hadn’t contemplated before filing the motion to amend. We

aren’t persuaded.

¶ 46 The record demonstrates that Karla had the opportunity to,

and indeed did, conduct additional discovery after mediation in an

attempt to explore her new theory that TDH had a standing order.

Karla’s counsel conceded that they sent TDH written discovery after

mediation in which they asked questions about the standing order.

The depositions were held in mid-January 2025, the mediation

occurred in early March 2025, and the discovery deadline expired at

the end of April 2025. Karla therefore had a minimum of

20
approximately six weeks after she contends she learned of the

standing order to conduct additional discovery. During this period

of time, Karla’s counsel could have deposed Fehr, but they chose

not to reschedule her deposition.

¶ 47 Similarly, Karla was aware of the expert disclosure deadline,

which expired two weeks after the scheduled mediation. It’s

undisputed that she didn’t disclose any experts before that deadline

and her motion to extend deadlines. At the hearing, Karla’s counsel

admitted they had made the strategic decision not to submit expert

disclosures up to that point. Although Karla argues that “the trial

continuance was necessary for Karla to develop expert testimony

that she had not contemplated prior to filing her proposed Second

Amended Complaint,” she doesn’t specify what expert testimony she

believed needed to be developed.

¶ 48 Thus, Karla didn’t assert any unforeseen and exceptional

circumstances. See Miller, 207 P.3d at 932. The court accordingly

found that Karla hadn’t demonstrated good cause to continue the

trial because, among other things, Karla’s request was based on

information that she had from the beginning of litigation.

21
¶ 49 Because the court’s finding that Karla didn’t demonstrate good

cause has record support, we won’t disturb it. See id. at 933

(affirming the court’s denial of a continuance because the record

supported that the moving party didn’t demonstrate good cause).

Accordingly, we conclude that the court didn’t abuse its discretion

when it denied Karla’s motion to continue.

V. Disposition

¶ 50 The judgment is affirmed.

JUDGE GOMEZ and JUDGE BERGER concur.

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