Rudnicki v. Bianco

• Decision Date: 13 December 2021
• Docket Number: Supreme Court Case No. 19SC631
• Parties: Francis RUDNICKI and Pamela Rudnicki, as parents, guardians and next friends of Alexander Rudnicki, a minor child, Petitioners, v. Peter BIANCO, D.O., Respondent.
• Court: Colorado Supreme Court

501 P.3d 776

Francis RUDNICKI and Pamela Rudnicki, as parents, guardians and next friends of Alexander Rudnicki, a minor child, Petitioners,

v.Peter BIANCO, D.O., Respondent.

Supreme Court Case No. 19SC631

Supreme Court of Colorado.

December 13, 2021

Rehearing Denied January 24, 2022

Attorneys for Petitioners: Ogborn Mihm, LLP, Thomas D. Neville, Clayton E. Wire, Denver, Colorado, Wahlberg, Woodruff, Nimmo & Sloane, LLP, David S. Woodruff, Denver, Colorado

Attorneys for Respondent: Messner Reeves LLP, Kendra N. Beckwith, Denver, Colorado

Attorneys for Amicus Curiae Children's Hospital Colorado: McConnell Van Pelt, LLC, Traci L. Van Pelt, Marjorie Taylor Smith, Denver, Colorado

Attorneys for Amicus Curiae Coloradans Protecting Patient Access: Wheeler Trigg O'Donnell LLP, Kevin J. Kuhn, Theresa Wardon Benz, Shawn K. Neal, Denver, Colorado

Attorneys for Amici Curiae Colorado Defense Lawyers Association, Colorado Civil Justice League, and American Property Casualty Insurance Association: Lent Parker Law LLC, Margrit Lent Parker, Firestone, Colorado

Attorneys for Amicus Curiae the Colorado Department of Health Care Policy and Financing: Philip J. Weiser, Attorney General, Alisa Campbell, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Leventhal Puga Braley P.C., Julia Thompson, Molly Greenblatt, Denver, Colorado, The Komyatte Law Firm LLC, David P. Mason, Lakewood, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 In this medical malpractice action arising from substantial injuries that an infant suffered during his birth, we must determine who may recover damages for the medical expenses that a child incurs prior to turning eighteen. Specifically, we granted certiorari to decide (1) whether to adhere to a common law rule under which only a minor plaintiff's parents may recover tort damages for medical expenses incurred by their unemancipated minor child and (2) if we adhere to that rule, whether the Colorado Department of Health Care Policy and Financing ("HCPF") may properly assert, against any amounts recovered by the child, a lien to recoup the pre-majority medical expenses that HCPF paid on the child's behalf, such that an exception to the common law rule applies.¹

¶2 We now conclude that the traditional rationales for the common law rule no longer apply and that the realities of today's health care economy compel us to abandon that rule. Accordingly, we conclude that in cases involving an unemancipated minor child, either the child or their parents may recover the child's pre-majority medical expenses, but double recovery is not permitted (we are intentionally using the singular "they" in this opinion). In light of this determination, we need not decide whether an exception to the common law rule applies in this case.

¶3 We therefore reverse the judgment of the division below.

I. Facts and Procedural History

¶4 On October 5, 2005, Alexander Rudnicki suffered serious injuries during his birth when OB-GYN Peter Bianco, D.O., negligently performed an operative vaginal delivery using a vacuum extractor to assist in that delivery. At birth, Alexander had severe scalp abrasions and bruising on his skull, and medical staff observed him to be floppy, quiet, and unresponsive, with diminished function and depressed Apgar scores. Alexander was immediately intubated and required intensive medical treatment, which revealed that he had suffered injuries to his brain as a result of the trauma to his scalp and skull caused by the vacuum extraction. As a result of his injuries, Alexander has required ongoing physical, occupational, and speech therapy; he is intellectually disabled and enrolled in special education at school; and he is not likely to be able to live independently in the future.

¶5 In 2014, Alexander's parents, Francis and Pamela Rudnicki, in both their individual capacities and as parents, guardians, and next friends of their son, filed a complaint against Dr. Bianco and the hospital where Alexander was born, alleging, among other things, professional negligence by Dr. Bianco. Dr. Bianco moved to dismiss, asserting, in pertinent part, that Alexander's parents did not bring their individual claims against him within the applicable two-year statute of limitations set forth in section 13-80-102.5, C.R.S. (2021). The district court agreed and dismissed Francis and Pamela Rudnicki's individual claims, and the case proceeded to trial with Alexander as the sole plaintiff. A jury ultimately found that Dr. Bianco had acted negligently and awarded Alexander damages totaling $4 million, including, among other things, $325,000 for past medical expenses and $110,000 for future medical expenses until Alexander reaches the age of twenty-two.

¶6 Dr. Bianco subsequently filed a post-trial motion to reduce this verdict. In his motion, he argued, as pertinent here, that under Colorado common law, only Alexander's parents could recover Alexander's pre-majority medical expenses and, therefore, the court was required to deduct from the verdict the medical expenses incurred prior to Alexander's eighteenth birthday.

¶7 The district court ultimately agreed with Dr. Bianco and vacated the entirety of the jury's $325,000 award for past medical expenses, as well as sixty percent of the jury's $110,000 award for future medical expenses until Alexander reached the age of twenty-two (i.e., $66,000, representing the expenses incurred from the date of the verdict, when Alexander was approximately twelve years old, until he would reach the age of eighteen; Dr. Bianco did not contest the portion of the award corresponding to medical expenses that Alexander would incur between the ages of eighteen and twenty-two). In so ruling, the district court relied on Pressey v. Children's Hospital Colorado, 2017 COA 28, ¶ 26, 488 P.3d 151, 159, in which a division of our court of appeals had upheld the common law rule barring minors from recovering their pre-majority medical expenses.

The district court thus concluded that the claim for pre-majority medical expenses belonged solely to Alexander's parents, but their claim for such expenses had been dismissed as time-barred.

¶8 Alexander appealed, arguing that applying the common law rule in the modern health care economy violates public policy and, therefore, the rule should be abandoned in favor of a rule allowing minor plaintiffs, as co-owners of their claim for pre-majority medical expenses, to recover those expenses. Alternatively, Alexander asserted that even if the common law rule applied, he fell within an exception to that rule that permits minors to seek pre-majority medical expenses when "the minor child has paid or agreed to pay the expenses." Id. at ¶ 28, 488 P.3d at 159 (quoting Betz v. Farm Bureau Mut. Ins. Agency of Kan., Inc., 269 Kan. 554, 8 P.3d 756, 760 (Kan. 2000) ). On this point, Alexander reasoned that HCPF, the state administrator of Medicaid, could seek reimbursement for his pre-majority medical bills by placing a lien on any judgment that he had obtained against a negligent third-party. Thus, Alexander asserted that he was personally liable for the expenses and therefore fell within the above-noted exception to the common law rule. (Alexander further contended that he fell within the exception because Anthem was also pursuing reimbursement for the pre-majority medical bills that it had paid, but Alexander did not pursue this argument before us.)

¶9 In a unanimous, unpublished decision, a division of the court of appeals affirmed the district court's reduction of the damages award. Rudnicki v. Bianco, No. 18CA0215, ¶¶ 2, 50, 2019 WL 2385683 (June 6, 2019). Although the division acknowledged what it perceived to be "the national trend toward abandonment of the common law rule and allowing both a minor and the minor's parents to recover the minor's pre-majority medical expenses," it felt compelled to follow precedent from this court that appeared to have adhered to that rule. Id. at ¶ 21. The division also rejected Alexander's alternative argument that, even were the common law rule to apply, he is entitled to recover pre-majority medical expenses under the above-described exception to that rule. Id. at ¶¶ 27-43. Specifically, as pertinent here, the division disagreed with Alexander's premise that HCPF could recover for the pre-majority medical expenses that it had advanced by imposing a lien against the judgment that Alexander had obtained. Id. at ¶¶ 41-43. The division reasoned that for HCPF to have a statutory lien against Alexander's recovery, it had to have paid for medical expenses for which a third-party was liable, but the trial court had vacated the jury award for Alexander's pre-majority medical expenses (and, thus, presumably, no third-party was liable for those expenses). Id. at ¶¶ 40-41. The division further opined that HCPF's "lien may attach to damages awarded for Alexander's future, post-majority medical expenses, but only if Alexander intends to stay on Medicaid," and nothing in the record indicated any such intent. Id. at ¶¶ 42-43. Thus, the division concluded that Alexander was not liable to HCPF for reimbursement of the pre-majority medical expenses that HCPF had advanced, and, therefore, the exception to the common law rule did not apply. Id. at ¶ 43.

¶10 Alexander petitioned this court for certiorari review, and we granted his petition.

II. Analysis

¶11 We begin by setting forth the law guiding our review, including the applicable standard of review and the principles governing the recovery of an injured minor's damages. After then acknowledging the principles of stare decisis, we consider the theoretical underpinnings of the common law rule and conclude that further adherence to that rule is no longer justified and indeed undermines Colorado's public policy goals.

A. Applicable Law

¶12 Whether the common law rule should continue to apply and, therefore, whether injured, unemancipated minors...