Physical Impairment and Disfigurement Under the Health Care Availability Act

• Jurisdiction: Colorado,United States
• Citation: Vol. 28 No. 5 Pg. 65
• Pages: 65
• Publication year: 1999

28 Colo.Law. 65 Colorado Lawyer 1999.

1999, May, Pg. 65. Physical Impairment and Disfigurement Under the Health Care Availability Act

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65

Vol. 28, No. 5, Pg. 65

The Colorado Lawyer
May 1999
Vol. 28, No. 5 [Page 65]

Specialty Law Columns
Health Law Forum
Physical Impairment and Disfigurement Under the Health Care Availability Act
by John L. Conklin

Damage awards for physical impairment and disfigurement can be significant in personal injury cases, including those cases where the plaintiff asserts claims of medical negligence. The Health Care Availability Act ("HCAA")1 governs cases involving medical negligence claims brought against a health care provider or health care institution. The HCAA places a $250,000 cap on all damages awarded for noneconomic loss and injury.2

The issue frequently arises whether this cap includes noneconomic damages for physical impairment and disfigurement. Predictably, the plaintiff patient argues that the HCAA does not cap damages for these injuries, while the defendant medical provider argues that the cap must apply to effectuate the legislative intent of limiting awards for noneconomic damages. The Colorado Court of Appeals has not rendered a decision on this issue, and the Colorado and U.S District Courts have entered inconsistent decisions on the matter, with some judges applying the cap to physical impairment and disfigurement damages, and others permitting unlimited awards

Statutory Caps on Noneconomic Damages

The implementation of tort reform by the Colorado General Assembly in the 1980s led to damage caps on noneconomic damages in all personal injury cases tried in Colorado courts. During the 1986 legislative session, the General Assembly enacted the general damages statute, CRS § 13-21-102.5, and capped the amount of recoverable noneconomic damages in all civil actions.3 In 1988, the legislature passed the HCAA, which caps all damages recoverable in medical negligence cases, including noneconomic damages. It is the relationship between these two statutes that creates the issue of whether the HCAA's cap on noneconomic damages in medical negligence cases includes noneconomic loss and injury for physical impairment and disfigurement

The HCAA cap on noneconomic damages expressly incorporates the definition of noneconomic injury or loss used in the general damages statute. Section 13-64-301(1) of the HCAA reads, in pertinent part:

The total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional, . . . whether past damages, future damages, or a combination of both, shall not exceed one million dollars, present value per patient, . . . of which not more than two hundred fifty thousand dollars, present value per patient, . . . shall be attributable to noneconomic loss or injury, as defined in section 13-21-102.5(2)(a) and (2)(b), whether past damages, future damages, or a combination of both . . . .4 [Emphasis added.]

The definition subsection, § 13-21-102.5 (2)(b), from the general damages statute states:

"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.5

On its face, the definition includes all noneconomic damages available to a plaintiff. In a separate section, however, the general damages statute creates a specific exception to the definition for "compensatory" damages for physical impairment and disfigurement: "(5) Nothing in this section shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement."6

Shortly after enactment of the general damages statute, the Colorado Supreme Court Committee On Civil Jury Instructions issued two alternative versions of the damages instruction. Version one included damages for physical impairment and disfigurement within the jury's determination of noneconomic damages as if the cap applies to those damages, while the alternate version provided for a separate, uncapped award for physical impairment and disfigurement.7 The committee stated that the trial court should decide which instruction to give based on "argument of counsel."8 The committee's Notes On Use discuss the members' struggle to determine whether the cap on noneconomic damages includes physical impairment and disfigurement.9

In 1992, the Colorado Court of Appeals decided a non-medical negligence case that presented the issue of whether the general damages statute cap on...