Chapter 60 - § 60.6 • DAMAGES

• Jurisdiction: Colorado

§ 60.6 • DAMAGES

§ 60.6.1—HCAA Limits

HCAA, at C.R.S. § 13-64-302, currently limits non-economic loss damages against licensed health-care providers to $300,000. A licensed health-care provider is broadly defined to include the licensed facility, as well as claims brought vicariously against ancillary employees, including those who are not themselves licensed. See, e.g., Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo. 1993).

However, HCAA applies only to civil actions for damages in tort. It is thus possible that claims brought under CCPA may not be subject to this HCAA cap, if CCPA claims are not considered tort claims. See, e.g., Crowe v. Tull, 126 P.3d 196 (Colo. 2006), which suggests that CCPA claims are not tort claims. This issue has not yet been addressed by Colorado appellate courts.

As an alternative to seeking traditional non-economic damages on behalf of heirs at law, the solatium statute, C.R.S. § 13-21-203.5, allows a plaintiff to elect a solatium award, which is now $87,210. (This amount is adjusted by the Colorado Secretary of State for inflation.) This option may be appropriate where it would otherwise be difficult to prove non-economic losses — i.e., where the heirs were not actively involved with the decedent or there is significant familial discord.

§ 60.6.2—Exemplary Damages

A claim for exemplary damages against a nursing home cannot be brought in the initial complaint. Rather, it can only be brought after "the substantial completion of discovery and only after the plaintiff establishes prima facie proof of a triable issue." C.R.S. § 13-64-302.5(3).⁵ A claim for exemplary damages lies if "the action complained of was attended by circumstances of fraud, malice, or willful and wanton conduct." C.R.S. § 13-64-302.5(4)(a). The complained-of conduct must be proved beyond a reasonable doubt. C.R.S. § 13-64-302.5(4)(b).

Corporations are generally not liable for the willful and wanton conduct of their employees and, thus, not liable for exemplary damages. There are two primary exceptions to this rule in Colorado: ratification and managerial conduct.

The jury instruction for ratification, CJI-Civ. 8:14 (CLE ed. 2019), is based in part on DeBose v. Bear Valley Church of Christ:

The question whether an employer has ratified its employee's unauthorized tort is one of fact. And, a fact finder may determine that an employer has ratified its employee's tortious acts from any course of conduct, including an omission to act, that reasonably

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