DENVER (Legal Newsline) - A Colorado appeals court upheld a $39.9 million jury verdict in a lawsuit over a newborn baby’s injuries from sepsis, nearly 40 times the statutory limit of $1 million in most malpractice cases.
The jury and trial judge had more than enough evidence to justify awarding compensation for a lifetime of medical care and lost wages, the Colorado Court of Appeals ruled, affirming the judgment against Banner Health, owner of North Colorado Medical Center. At the same time, the court affirmed the power of trial judges to reduce such jury awards if they see fit.
Chance and Erin Gresser sued Banner Health after their daughter, C.G. suffered cerebral palsy and other debilitating injuries from sepsis she contracted two days after birth. The Gressers argued nurses failed to alert C.G.’s doctors of the signs of sepsis in time to administer antibiotics before the morning of the third day.
Colorado’s Health Care Availability Act caps tort damages at $1 million in lawsuits against hospitals and doctors unless a judge finds the plaintiff is entitled to more money for past and future economic damages. Banner Health argued the judge misinterpreted HCAA to mean he faced a “binary choice” between upholding the full amount of the jury verdict or applying the $1 million cap.
That was wrong, the appeals court ruled. Judges retain discretion to reduce jury verdicts if they are “grossly and manifestly excessive,” the court said, in what it described as a ruling of first impression. But the judge in this case had no reason to do so, the appeals court went on. Banner Health argued the Gressers presented inflated estimates for the cost of care since most of their expenses were covered by Medicaid, the insurance program for low-income citizens.
Colorado law prevents courts from subtracting Medicare-covered expenses from amounts awarded to plaintiffs, however, under the theory that defendants shouldn’t get the financial benefit of a government program. Medicare can recover its expenses from the plaintiff later.
“While we disagree with the court that it was faced with a binary choice, once it decided the cap should be lifted, it did not err by awarding the Gressers the same amount of past and future economic damages that the jury had calculated,” the appeals court said.
Banner Health also argued the judgment should be set aside because plaintiffs’ expert on causation, Dr. Ramzy Rimawi, was an adult infectious disease specialist with no qualifications to testify about the treatment of newborn babies. The appeals court rejected the argument, saying that as an emergency room physician Dr. Rimawi had ample experience to testify about the identification and treatment of sepsis, even in infants. The doctor testified that C.G. was “very far along” with symptoms of sepsis by the evening of the second day, and administering antibiotics by 6 p.m. would have prevented permanent injuries.
Finally, the court rejected arguments the trial judge shouldn’t have suppressed testimony based on an assumption C.G. wouldn’t live past her mid-50s, which would have limited potential lifetime earnings and medical expenses, ruling Banner Health had failed to disclose their expert’s opinion on the question to the plaintiffs before trial. And the court also upheld the trial judge’s refusal to strike suggestions by the plaintiff lawyers that Banner Health’s lawyers had colluded with defense witnesses to alter their testimony.
During trial, a plaintiff lawyer told one nurse she had “a completely different story” after meeting with hospital lawyers and accused a physician of leaving out important information in his patient notes.
“That testimony is not good for Team Banner, is it, those notes in the records?” the plaintiff lawyer asked. “Those aren’t good for Team Banner?”
The trial judge agreed the question was argumentative and instructed the jury to disregard it.