Ledstrom by and through Ledstrom v. Keeling

• Citation: 10 F.Supp.2d 1195
• Decision Date: 27 July 1998
• Docket Number: No. CIV. 96-WM-502.,CIV. 96-WM-502.
• Parties: Justin R. LEDSTROM, a minor, By and Through his parent, natural guardian and next friend, Gary LEDSTROM; and Gary Ledstrom, individually, Plaintiffs, v. Timothy KEELING, D.O. and Carmen Laronn, M.D., Defendants.
• Court: U.S. District Court — District of Colorado

10 F.Supp.2d 1195

Justin R. LEDSTROM, a minor, By and Through his parent, natural guardian and next friend, Gary LEDSTROM; and Gary Ledstrom, individually, Plaintiffs, v. Timothy KEELING, D.O. and Carmen Laronn, M.D., Defendants.

No. CIV. 96-WM-502.

United States District Court, D. Colorado.

July 27, 1998.

William Hansen, Denver, CO, for Justin R. Ledstrom.

Kim B. Childs, Denver, CO, for Carmen Laronn.

Robert Ruddy, Glendale, CO, for Timothy Keeling.

MEMORANDUM OPINION AND ORDER

MILLER, District Judge.

This is a medical malpractice action against two Colorado physicians for injuries allegedly caused by their misdiagnosis and improper treatment. The pleadings and arguments of the parties raise the issue of how applicable Colorado statutes limit the recovery against health care professionals for noneconomic losses associated with physical impairment and disfigurement. There exists no reported precedent on this issue.¹

Jurisdiction

This is an action by Minnesota citizens against Colorado physicians for their treatment of the plaintiff in Colorado. Accordingly, this court has diversity jurisdiction over this action. 28 U.S.C. § 1332(a)(1). Under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), I apply Colorado substantive law. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Sender v. Simon, 84 F.3d 1299, 1303 (10th Cir.1996).

Issue Presented

Does the $250,000 limitation on damage recoveries for non-economic loss or injury contained in the Colorado Health Care Availability Act (HCAA), C.R.S. §§ 13-64-101 to 13-64-503, apply to damages for physical impairment or disfigurement which are excepted from the general limitation on damages for noneconomic loss or injury under C.R.S. § 13-21-102.5?

Factual Background

In early 1994, plaintiff Justin Ledstrom, a minor of 12 years old, began to suffer from headaches and related discomforts. On March 5, 1994, he was presented to defendant Dr. Keeling, a family physician, for evaluation. Dr. Keeling diagnosed frontal bacterial sinusitis and prescribed an antibiotic and steroid nasal spray. The plaintiff was told to return if his condition did not improve within 7 to 10 days. The plaintiff initially improved but there is factual dispute what happened thereafter.

According to the plaintiff, his condition did not clear up and he was referred to an allergist, defendant Dr. Laronn. A visit was scheduled with Dr. Laronn on March 26, 1994. She testified that the plaintiff presented himself with chronic symptoms usually related to allergies and not with symptoms of acute sinusitis. Indeed, skin tests and other allergy examinations were completed, antihistamine drugs for symptomatic relief prescribed and a future examination scheduled.

On March 30, 1994, the plaintiff flew alone from Colorado to Minnesota to visit his grandparents. While there, he became quite ill, was taken to the emergency room of the local hospital and eventually diagnosed with subdural and epidural empyemas — collections of pus within his cranial cavity around his brain. Immediate surgery was performed to drain the infection and two further surgeries were ultimately required.

Plaintiff alleges physical impairment and disfigurement as a result of the disease and operations. Because of a prior accident, there is dispute concerning not only the existence, but also the cause, of any impairment. Since the surgeries necessitated opening the skull, there is no dispute that some disfigurement exists.

Discussion

This case presents the issue of whether statutory limitations on damage recoveries for nonpecuniary losses include losses attributable to "physical impairment or disfigurement."

The statutes giving rise to this dispute were sequentially adopted. In 1986, the Colorado General Assembly concluded that damage awards for "noneconomic losses or injuries" threatened public welfare and enacted C.R.S. § 13-21-102.5, which provides in relevant part:

(2) As used in this section:

. . . . .

(b) "Noneconomic loss or injury" means nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life....

(3)(a) In any civil action in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of such damages exceed five hundred thousand dollars.

. . . . .

(4) The limitations specified in subsection (3) of this section shall not be disclosed to a jury in any such action, but shall be imposed by the court before judgment.

(5) Nothing in this section shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement.

Applicable to all actions, this section limited damages for "noneconomic loss or injury" in the first instance (subsection (3)(a)) but then carves out an exception by providing that the section shall not "be construed to limit the recovery of compensatory damages for physical impairment or disfigurement" (subsection (5)).

In Herrera v. Gene's Towing, 827 P.2d 619 (Colo.App.1992), the Colorado Court of Appeals, construing the entire statute to give it a "consistent, harmonious and sensible effect to all of its parts," concluded that "to harmonize Section 13-21-102.5(2)(b) and (3)(a) with (5) and give effect to all three subsections, it is necessary to determine separately damages of a noneconomic nature for physical impairment and disfigurement from the noneconomic loss or injury defined in Section 13-21-102.5(2)(b)." Id. 827 P.2d at 620-621.

In other words, noneconomic damages for physical impairment and disfigurement are not included within the $250,000 limitation. Without more, therefore, the rule of general application in Colorado is that a plaintiff may recover unlimited compensatory damages, economic and noneconomic, for physical impairment or disfigurement in addition to (and separate from) an award of up to $250,000 for noneconomic damages.²

However, in 1988, the Colorado General Assembly adopted the HCAA which further limited damage recoveries against health care professionals, again based upon the finding that it was necessary "to preserve the public peace, health, and welfare." C.R.S. § 13-64-102. In particular, liability of health care professionals in tort "shall not exceed one million dollars ... of which not more than two hundred fifty thousand dollars ... shall be attributable to noneconomic loss or injury, as defined in section 13-21-102.5 ... (2)(b) ...." C.R.S. § 13-64-302(1).

The express reference to the general statute, C.R.S. § 13-21-102.5, is limited to the definition of "noneconomic loss or injury" found in subsection (2)(b). The parties dispute whether the elimination of the "cap" on compensatory damages for physical impairment or disfigurement, by virtue of C.R.S. § 13-21-102.5(5), applies to the HCAA as well.

Plaintiff claims it does, arguing that the definition of "noneconomic loss or injury" was in effect modified by subsection (5) to exclude damages for "physical impairment or disfigurement."³ Plaintiff then claims that must have been known by the legislature and the reference in the HCAA to the definition of "noneconomic loss or injury" carries with it this interpretation. See Busch v. Gunter, 870 P.2d 586, 587 (Colo.App.1993) (legislature presumed to know legal import of words it uses); Starr Fireworks, Inc. v. West Adams County Fire Dep't, 903 P.2d 1202, 1204 (Colo. App.1995) (legislature presumed to have full knowledge of existing decisional and statutory law).

Plaintiff bolsters his argument by reference to Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo.1993), a case controlled by the HCAA. Although the Colorado Supreme Court did not directly address the issue, plaintiff points to footnotes discussing the breakdown of damages awarded at trial, which included a separate category for "physical impairment" distinct from noneconomic damages. Id. 851 P.2d at 903 nn. 2 & 3. Plaintiff argues that this is implicit confirmation of its interpretation that damages for physical impairment and disfigurement are not limited by the $250,000 "cap" on noneconomic losses under the HCAA.

With reference to some of the same authority, defendants reach the opposite conclusion. The Defendants argue that the HCAA is unambiguous, its meaning plain, and the later enacted and more specific HCAA controls over the earlier, general legislation. Accordingly, defendants conclude, the specific definitional reference in the HCAA to a particular subsection of the general damages statute does not bring with it the balance of C.R.S. § 13-21-102.5.

The defendants also point to another provision of the HCAA, C.R.S. § 13-64-204, which mandates separate findings for specific categories of damages. The statute does not list a category for damages attributable to physical impairment and disfigurement apart from other noneconomic loss.⁴

Finally, the defendants also rely on Scholz, noting the Colorado Supreme Court declined to incorporate subsection 13-21-102.5(3) (allowing increase up to $500,000 for noneconomic damages) into the HCAA.

The interpretation of these statutes and their interrelationship is a question of law. People v. Terry, 791 P.2d 374, 375 (Colo. 1990). In construing a statute, the first step should be to look at its plain and ordinary meaning. "If the language is plain and the meaning is clear, there is no need to resort to interpretative rules of statutory construction." Mason v. People, 932 P.2d 1377, 1378 (Colo.1997).

The Colorado Supreme Court has held that "Section 13-64-302 is not ambiguous on its face." Colorado Permanente Medical Group, P.C. v. Evans, 926 P.2d 1218, 1230 (Colo.1996). The plain language of ...