Preston v. Dupont

• Decision Date: 13 November 2001
• Docket Number: No. 00SC492.,00SC492.
• Parties: James M. PRESTON, D.D.S., Petitioner, v. Renee DUPONT, Respondent.
• Court: Colorado Supreme Court

35 P.3d 433

James M. PRESTON, D.D.S., Petitioner, v. Renee DUPONT, Respondent.

No. 00SC492.

Supreme Court of Colorado, En Banc.

November 13, 2001.

As Modified on Denial of Rehearing December 3, 2001.

Davis Graham & Stubbs, LLP, Dale Harris, Andrew M. Low, Joel N. Varnell & Associates, J. Gregory Morrell, Denver, CO, Attorneys for Petitioner.

Leventhal & Brown, PC, Anthony J. Viorst, Denver, CO, Attorneys for Respondent.

Kennedy & Christopher, P.C., John R. Mann, Denver, CO, Amicus Curiae for Colorado Health and Hospital Association, Amicus Curiae for Physician Insurers Association of America.

McDermott and Hansen, William J. Hansen, Denver, CO, Amicus Curiae for Colorado Trial Lawyers Association.

Montgomery Little & McGrew, P.C., Robert N. Spencer, Patrick T. O'Rourke, Englewood, CO, Amicus Curiae for Colorado Medical Society.

Justice MARTINEZ delivered the Opinion of the Court.

In this case, we determine whether, in medical malpractice actions, which are governed by the Colorado Health Care Availability Act ("HCAA"), noneconomic losses or injuries caused by physical impairment or disfigurement are subject to the HCAA's $250,000 limitation on noneconomic damages. Resolution of this issue necessitates that we determine the relationship between section 13-21-102.5, 5 C.R.S. (2001), which limits noneconomic damages in general, civil actions, and section 13-64-302, 5 C.R.S. (2001), the section of the HCAA that limits noneconomic damages in medical malpractice actions.

Additionally, we decide whether the jury in a medical malpractice action should be instructed to award a separate category of damages for physical impairment and disfigurement in addition to the statutory categories set forth in section 13-64-204, 5 C.R.S. (2001), of the HCAA.

We affirm the court of appeals, although pursuant to different reasoning. We hold that the $250,000 cap on noneconomic damages contained in section 13-64-302 of the HCAA does not limit damages for physical impairment or disfigurement. More specifically, we hold that the definition of noneconomic damages in section 13-64-302 is not limited to subsections 13-21-102.5(2)(a) and (2)(b), but must also be construed in light of subsection 13-21-102.5(5), which excludes physical impairment and disfigurement from the $250,000 cap on noneconomic damages. As a result, we find that it is proper for a trial court to instruct a jury in a medical malpractice action to award a separate category of damages for physical impairment and disfigurement.

I.

Plaintiff-Respondent Renee Dupont ("Dupont") filed a medical malpractice claim against her dentist, Defendant Petitioner James M. Preston ("Preston"). Dupont sustained injuries after several botched root canals performed by Preston, in which he used a controversial technique not taught in dental schools. As a result of Preston's dental malpractice, Dupont sustained permanent damage to her alveolar nerve, causing numbness and severe pain in her jaw that will continue throughout her life. She also sustained permanent loss of sensitivity in part of her chin. The jury found in favor of Dupont and awarded her $34,933.12 for economic damages arising from medical expenses, $240,000 for noneconomic damages, and $22,000 for physical impairment. The trial court awarded prejudgment interest and entered judgment against Preston.

The court of appeals modified the judgment and, as modified, affirmed.¹ The court of appeals determined that damages for physical impairment and disfigurement were not subject to the HCAA's damages cap because there is no specific mention of such damages in the definition of noneconomic damages contained in subsections 13-21-102.5(2)(a) and (2)(b) of the general damages statute, which are expressly incorporated into the HCAA's damages cap. Dupont v. Preston, 9 P.3d 1193, 1198 (Colo.App.2000). Further, the court of appeals reasoned that because damages for physical impairment or disfigurement can be economic or noneconomic, and because the literal language of subsections 13-21-102.5(2)(a) and (2)(b) is applicable only to noneconomic damages, there was additional support for its decision not to construe physical impairment and disfigurement in the definition of noneconomic loss contained in the HCAA's damages cap. Id. Finally, the court of appeals found that the HCAA's cap on noneconomic damages was applicable only to the specific damages listed in subsection 13-21-102.5(2)(b) and incorporated into section 13-64-302 of the HCAA, namely pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. Id.

II.

We granted certiorari in this case to determine the relationship between section 13-64-204 ("the 204 required findings") and section 13-64-302 ("the 302 HCAA cap") of the HCAA, and section 13-21-102.5 ("the 102.5 general cap") of the general damages statute.²

The 302 HCAA cap limits liability in medical malpractice actions.³ This cap limits the total amount recoverable from all defendants to $1 million. The 302 HCAA cap also states that not more than $250,000 of the $1 million cap "shall be attributable to noneconomic loss or injury." § 13-64-302(1), 5 C.R.S. (2001).

The 302 HCAA cap defines "noneconomic loss" by incorporating subsections 13-21-102.5(2)(a) and (2)(b) of the general damages statute.⁴ Subsection 13-21-102.5(2)(a), which is not at issue in this case, defines derivative noneconomic loss. Subsection 13-21-102.5(2)(b), which is at issue in this case, defines "noneconomic loss" as "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." § 13-21-102.5(2)(b), 5 C.R.S. (2001).

Additionally, subsection 13-21-102.5(5) of the general damages statute ("the 102.5(5) physical impairment subsection") is implicated in this case. The 102.5(5) physical impairment subsection states that "[n]othing in this section [102.5] shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement." § 13-21-102.5(5), 5 C.R.S. (2001). The 102.5(5) physical impairment subsection is not expressly incorporated into either the 204 required findings or the 302 HCAA cap.

Finally, section 13-64-204 is triggered when a defendant is found liable under the HCAA. The 204 required findings instruct the trier of fact to make specific findings, including past and present damages for medical and health care costs, lost earnings, economic loss (excluding lost earnings), and noneconomic damages.⁵ The 204 required findings instruct the trier of fact to make the specific findings for the purpose of determining periodic payments. See § 13-64-203, 5 C.R.S. (2001). However, the 204 required findings also explicitly state that the trier of fact will make "other appropriate findings" in addition to the specific findings required by section 13-64-204. For purposes of the 204 required findings, "noneconomic loss" is defined as "nonpecuniary harm for which damages are recoverable under the laws of this state, but the term does not include punitive or exemplary damages." § 13-64-202(5).

The question raised upon review of these statutes is whether noneconomic damages for physical impairment or disfigurement in a medical malpractice action are included in the 302 HCAA cap. In its most basic form, the issue is whether the definition of "noneconomic loss" contained in the 302 HCAA cap, which incorporates the definition of that term from the 102.5 general cap, limits damages for physical impairment or disfigurement.

III.

When the language of a statute is clear and unambiguous, we apply the statute as written and do not need to resort to the interpretive rules of statutory construction. Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1364 (Colo.1994). However, if a statute is unclear and the language lends itself to alternative constructions, we may look to the relevant legislative history to determine which construction is in accordance with the legislature's intent and purpose. People v. Terry, 791 P.2d 374, 376 (Colo.1990). Our task is to construe the statute to further the legislative intent as evidenced by the entire statutory scheme. Meyers v. Price, 842 P.2d 229, 231 (Colo.1992).

A.

Both parties insist that the 302 HCAA cap is plain and unambiguous, but reach different conclusions regarding its impact on damages for physical impairment and disfigurement. Preston asserts that the statutory language of section 13-64-302 limits noneconomic damages without exception to $250,000. He concludes that the limitation necessarily includes any damages for physical impairment and disfigurement.

Preston further contends that the plain and unqualified language of the HCAA prevails over any purported inconsistent language from the general damages statute. He asserts that because the 302 HCAA cap incorporates only subsections 102.5(2)(a) and (2)(b) of the general damages statute, and does not expressly incorporate subsection 13-21-102.5(5) of the general damages statute, it is improper to conclude that the 302 HCAA cap excludes damages for physical impairment and disfigurement. Preston argues that the definition of "noneconomic loss or injury" in the 102.5 general cap, as incorporated into the 302 HCAA cap, must include physical impairment and disfigurement damages. To support this contention, he relies specifically on the 102.5 general cap, which defines noneconomic loss as "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 to the quality of life." § 13-21-102.5(2)(b), 5 C.R.S. (2001) (emphasis added). He contends that the word "includes" is one of expansion and thus concludes that the 102.5 general cap as it is incorporated into the 302 HCAA cap, must "include" physical impairment and disfigurement in...