Susan Ann Scholle v. Edward Ehrichs

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

2022COA87

No. 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 2022COA87

Court 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