Maldonado v. GeneDx

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 21, 2024

2024COA121

No. 23CA2092, Maldonado v. GeneDx — Health and
Welfare — Health Care Availability Act — Limitation of Actions
— Genetic Testing and Counseling

A division of the court of appeals interprets for the first time

section 13-64-502(1), C.R.S. 2024, holding that the parents alleged

a plausible claim for relief against medical professionals and health

care institutions for damages arising from allegedly negligent

genetic testing and counseling that could have prevented or avoided

the birth of twins with a medical disorder if the professionals and

institutions had exercised the ordinary standard of care. As a

result, the division reverses the district court’s dismissal of the

parents’ claims under C.R.C.P. 12(b)(5).
COLORADO COURT OF APPEALS 2024COA121

Court of Appeals No. 23CA2092
City and County of Denver District Court No. 23CV31908
Honorable Martin F. Egelhoff, Judge

Secily Maldonado, individually, and as next friends, natural parents, and
guardians of their son JAC, a minor, and their daughter JMC, a minor child,
John Anthony Carcanaques, individually, and as next friends, natural parents,
and guardians of their son JAC, a minor, and their daughter JMC, a minor
child, J.A.C., individually by and through their guardians and custodians
Secily Maldonado and John Anthony Carcanaques, and J.M.C., individually by
and through their guardians and custodians Secily Maldonado and John
Anthony Carcanaques,

Plaintiffs-Appellants,

v.

GeneDx, Inc., a New Jersey corporation; GeneDx, LLC; a Non-Maryland limited
liability company; Katelyn Beattie, MSG, CGC; Amanda Lindy, FACMG, PhD;
Children’s Hospital of Colorado, a Colorado nonprofit corporation; Alison
Ballard, RN, CPNP; Melissa Gibbons, MS, Genetic Counselor; Lisa McCown,
MS, Genetic Counseling Graduate Student; and University of Colorado Hospital
Authority located at Anschutz Campus,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

Announced November 21, 2024

Chalat Hatten & Banker, PC, James H. Chalat, Evan P. Banker, Denver,
Colorado; Purvis Thompson, LLP, John A. Purvis, Michael J. Thompson,
Boulder, Colorado, for Plaintiff-Appellants
Taylor Anderson LLP, John T. Osgood, James D. Murdock, II, Benjamin Wright,
Christine L. Atwood, Denver, Colorado, for Defendants-Appellees GeneDx, Inc.;
GeneDx, LLC; Katelyn Beattie; and Amanda Lindy

Hall Booth Smith, P.C., Elizabeth C. Moran, Rodrigo Lugo, Greenwood Village,
Colorado; Hall Booth Smith, P.C., Ryan M. Donihue, Atlanta, Georgia for
Defendant-Appellee Children’s Hospital of Colorado

Conklin Cardone & Rutberg, PC, John Conklin, Deann Zenisek, Denver,
Colorado for Defendants-Appellees Alison Ballard, Melissa Gibbons, Lisa
McCown, and University of Colorado Hospital Authority
¶1 In 1988, the General Assembly enacted the Health Care

Availability Act (HCAA), effective July 1, 1988. See §§ 13-64-101 to

-503, C.R.S. 2024. Currently, and as originally passed, section 13-

64-502(1), C.R.S. 2024, limits the scope of liability in certain

negligence actions against health care professionals. There is,

however, an exception. As originally passed, the exception

authorized lawsuits for “injury” that could have been “prevented or

avoided” had the health care professional acted consistent with the

ordinary standard of care. § 13-64-502, C.R.S. 1988 (repealed

1989).

¶2 Approximately five months after the HCAA’s enactment, our

supreme court decided Lininger v. Eisenbaum, 764 P.2d 1202, 1204

(Colo. 1988). The case recognized a common law negligence action

seeking damages against a doctor who provided the parents with

medical advice that their first child’s eye condition resulting in

blindness was not genetic, yet their second child developed the

same eye condition as his sibling.

¶3 Following Lininger, the General Assembly amended section 13-

64-502(1), effective July 1, 1989, by broadening the statutory bar

against negligence actions to preclude claims for “damage or injury”

1
arising from “genetic counseling and screening” but also expanding

the exception to permit lawsuits involving “damage or injury”

resulting from a “genetic disease or disorder” that could have been

prevented or avoided if the ordinary standard of care had been met.

Ch. 135, sec. 4, § 13-64-502(1), 1989 Colo. Sess. Laws 763.

¶4 Since its enactment, no case has interpreted section 13-64-

502(1). Given the timing of this provision’s amendment in 1989, as

well as the plain language of the statute, it is reasonable to

interpret the provision consistent with Lininger’s holding.

Specifically, we give effect to the term “damage” in the statute to

permit a claim for economic damages for a child’s medical expenses

or other extraordinary expenses resulting from a health care

professional’s alleged negligent genetic counseling or screening.

¶5 In this case, the parents brought an action against medical

professionals alleging that negligent genetic testing and counseling

led them to believe their twins would not be — but were in fact —

affected by a severe medical disorder. The district court dismissed

the parents’ claims under C.R.C.P. 12(b)(5), reasoning that the

lawsuit did not fall under section 13-64-502(1)’s exception. But the

parents’ claims do fall squarely under that exception, so we reverse

2
and reinstate the complaint as to those claims. As to the children’s

claims against the medical professionals, however, we conclude that

the district court properly dismissed them under Lininger. And we

decline to address damages because the issue was not resolved

below. Therefore, we reverse in part, affirm in part, and remand the

case to the district court for further proceedings consistent with

this opinion.

I. Background

¶6 Plaintiffs Secily Maldonado (Maldonado) and John Anthony

Carcanaques (Carcanaques) (collectively the parents) brought this

action on behalf of themselves and on behalf of their twins,

plaintiffs J.A.C. and J.M.C. (collectively the children), who also

asserted claims on behalf of themselves. The complaint alleged that

defendants — who include the Children’s Hospital of Colorado, the

University of Colorado Hospital Authority, Alison Ballard (Ballard),

Melissa Gibbons (Gibbons), and Lisa McCown (McCown)

(collectively, Hospital Defendants) as well as GeneDx, Inc.; GeneDx,

LLC; Katelyn Beattie (Beattie); and Amanda Lindy (Lindy)

(collectively GeneDx Defendants) — negligently misrepresented to

Maldonado that she was not a genetic carrier of Duchenne

3
Muscular Dystrophy (DMD) and that the parents relied on that

information and Maldonado ultimately gave birth to J.A.C. (who has

developed DMD) and J.M.C. (who is a carrier of DMD).

¶7 Based on the allegations in the complaint, DMD is an

inheritable and irreversible genetic disorder that is marked by

progressive muscle degeneration and weakness. The disease is an

X-linked recessive gene disorder that predominantly affects males

(females are usually carriers without displaying symptoms). Due to

its genetic nature, the presence of DMD in a family history

significantly increases the risk of occurrence in offspring,

reinforcing the importance of genetic counseling and testing in

families with known carriers.

¶8 Maldonado has a family history of DMD, and in November

2016, she underwent DMD genetic counseling at Children’s

Hospital in anticipation of starting a family. Ballard, an employee

of Children’s Hospital,1 advised that Maldonaldo undergo genetic

testing. Hospital caregivers submitted Maldonado’s urine sample to

GeneDx Defendants’ lab for testing. GeneDx Defendants sent a

1 The complaint alleged that Children’s Hospital employees are

employees of the University of Colorado Hospital Authority.

4
report signed by Beattie and Lindy to Maldonado’s caregivers in

December 2016 indicating that Maldonado tested negative for the

DMD genetic variant. Hospital Defendants informed Maldonaldo via

a December 29, 2016 letter from McGown and Gibbons that “the

testing has returned with negative results. This means that you are

NOT a carrier of DMD.”2 After receiving the negative DMD gene

report, Maldonado and Carcanaques conceived their son, J.A.C.,

and his twin sister, J.M.C.

¶9 In summer 2022, J.A.C. was unwell and Maldonaldo took him

to Children’s Hospital for treatment. In September 2022, J.A.C.

tested positive for DMD, developing signs and symptoms of being

directly affected by DMD. At the recommendation of Gibbons and

Ballard, Maldonaldo underwent additional genetic testing, and her

specimen was submitted to a different lab. In October 2022, she

tested positive for being a carrier of DMD. J.M.C. was also tested,

and in October 2022, she too tested positive for being a carrier of

the genetic mutation. Plaintiffs’ further investigation following

these results revealed that the genetic testing conducted by GeneDx

2 The text in the letter sent to Maldonado saying “you are NOT a

carrier of DMD” was in bold print.

5
Defendants produced a “false negative,” which is a result indicating

a decreased risk of a genetic condition when the person is in fact

affected.

¶ 10 Plaintiffs brought negligence claims against all defendants and

sought pre- and post-majority extraordinary medical and other

expenses due to their children being adversely affected by DMD

allegedly as the result of false-negative genetic testing. They

asserted that Hospital Defendants failed to (1) “identify the risk of

the presence of the DMD gene in Ms. Maldonado’s DNA”;

(2) “recognize the clear caveat that the absence of a control sample

weakened the veracity of the report”; (3) “order further adequate

testing”; or (4) “properly counsel Ms. Maldonado as to the ongoing

risks of being an obligate DMD carrier notwithstanding her

neuromuscular symptoms.” Plaintiffs also alleged that GeneDx

Defendants “breached their duties of care by failing to detect the

presence of the DMD gene in Ms. Maldonado’s DNA sample, despite

the clear presence of such a gene.”

¶ 11 The children asserted claims for “non-economic damages

resulting from the negligent misdiagnosis of Ms. Maldonado,

including loss of enjoyment of a natural life.”

6
¶ 12 Hospital Defendants and GeneDx Defendants separately

moved to dismiss plaintiffs’ complaint under C.R.C.P. 12(b)(5).

Defendants argued that plaintiffs failed to state a claim under

section 13-64-502(1), which, among other things, limits civil

liability stemming from genetic counseling or screening. The court

dismissed the action.

¶ 13 On appeal, plaintiffs contend that the district court erred by

(1) ruling that section 13-64-502(1) prohibited the relief sought in

their complaint and (2) precluding plaintiffs from seeking economic

damages for the injuries sustained by the children.

II. Standard of Review

¶ 14 We review de novo a district court’s ruling dismissing a

complaint for failure to state a claim under C.R.C.P. 12(b)(5).

Houser v. CenturyLink, Inc., 2024 COA 96, ¶ 22. We apply the same

standards as the district court, accepting the complaint’s factual

allegations as true and viewing those allegations in the light most

favorable to the plaintiff. Id. But we do not accept as true

conclusory allegations or legal conclusions. Capital One, N.A. v.

Colo. Dep’t of Revenue, 2022 COA 16, ¶ 13. A court may dismiss a

complaint under Rule 12(b)(5) if the factual allegations do not, as a

7
matter of law, support a claim for relief. Froid v. Zacheis, 2021 COA

74, ¶ 17.

¶ 15 Statutory interpretation is a question of law that we review de

novo. Finney v. People, 2014 CO 38, ¶ 12. When interpreting a

statute, we first examine the plain meaning of the statutory

language. Roup v. Com. Rsch., LLC, 2015 CO 38, ¶ 8. “We read

statutory words and phrases in context, and we construe them

according to the rules of grammar and common usage.” Solano v.

Newman, 2024 COA 93M, ¶ 16 (quoting McCoy v. People, 2019 CO

44, ¶ 37). If the language in a statute is clear and unambiguous,

we give effect to its plain meaning and look no further. Brookhart v.

Reaman, 2023 COA 93, ¶ 27.

III. Analysis

A. The HCAA and Lininger

¶ 16 As originally passed in 1988, section 13-64-502 stated:

No physician or other health care professional
or health care institution shall be liable to an
infant or his personal representative, parents,
or next of kin for injury occurring during the
course of labor, delivery, or the immediate
postdelivery period in a health care institution
where such injury was the result of genetic
disease or disorder, or other natural causes,
and could not have been prevented or avoided

8
by ordinary care of the physician or other
health care professional or health care
institution.

§ 13-64-502, C.R.S. 1988 (emphasis added); see Ch. 100, sec. 1,

§ 13-64-502, 1988 Colo. Sess. Laws 623 (effective July 1, 1988).

Less than five months after its enactment, on November 26, 1988,

our supreme court announced Lininger. That case recognized that

a parent has a legally cognizable claim at common law for

situations in which parents allege that “but for a physician’s

negligence in either misinforming them or failing to inform them

about the likelihood that their child would be born with a birth

defect or impairment, they would not have conceived,” and “the

child who was subsequently born [had] an impairment.” 764 P.2d

at 1204 (emphasis added). Once referred to as a “wrongful birth”

claim, Lininger directed courts to treat such claims as any other

physician negligence action. Id. at 1205.

¶ 17 The facts in Lininger are similar to this case. The Lininger

parents had a son who had a congenital eye condition that led to

blindness. Id. at 1203. Not wanting another child with blindness,

the parents sought their physicians’ advice about the possibility of a

second child being born blind; the physicians advised them that the

9
son’s eye condition was not hereditary. Id. at 1203-04. The

parents had a second son, who later went blind. Id. at 1204. Both

children were subsequently diagnosed as being afflicted with the

same hereditary form of blindness. Id. The court concluded that

the monetary burden the parents shouldered in treating the second

son’s blindness was similar to that of any other personal injury,

and therefore, the parents should be entitled to recover the

“extraordinary medical and education expenses associated with the

treatment of [the second son’s] blindness.” Id. at 1206-07.

¶ 18 During the next legislative session, the General Assembly

amended section 13-64-502, effective July 1, 1989. Ch. 135, sec. 4,

§ 13-64-502(1), 1989 Colo. Sess. Laws 763. The statute remains

unchanged since the 1989 amendment and states,

No claimant, including an infant or his
personal representative, parents, or next of
kin, may recover for any damage or injury
arising from genetic counseling and screening
and prenatal care, or arising from or during
the course of labor, delivery, or the period of
postnatal care in a health care institution,
where such damage or injury was the result of
genetic disease or disorder or other natural
causes, unless the claimant can establish by a
preponderance of the evidence that the damage
or injury could have been prevented or avoided
by ordinary standard of care of the physician

10
or other health care professional or health care
institution.

§ 13-64-502(1) (emphasis added). This amendment altered the

original language by

• adding the word “damage” so both the statutory bar and

exception refer to claims for “damage or injury”;

• expanding the statutory bar to encompass lawsuits “arising

from genetic counseling and screening”;

• clarifying that the statutory bar applies to claims for “damage

or injury” that was “the result of [the] genetic disease or

disorder”; and

• clarifying that the statutory exception allows claims for

“damage or injury” resulting from a genetic disease or disorder

that could have been “prevented or avoided” by the ordinary

standard of care of the health care professional or institution.

B. The District Court Order

¶ 19 According to the district court, the central premise of parents’

claim is that they relied on defendants’ negligent genetic testing and

counseling that Maldonado was not a carrier of DMD, they relied on

that information to assist them in their family planning decisions,

11
and that reliance “ultimately resulted in one of [the] children

possessing the errant gene mutation that produced the symptoms

and effects of DMD.” Although parents acknowledge that a person

with DMD cannot be cured, they argue that having children with

the disease could have been “prevented or avoided by alternative

family planning options, like sterilization and/or adoption.”

¶ 20 But in dismissing the complaint, the district court concluded

the proper question to ask was “not whether the births of the

children could have been prevented or avoided, but whether the

DMD that resulted from gene mutation that ultimately adversely

affected the children could have been prevented or avoided by

health professionals through the exercise of ordinary care.” In

other words, the district court equated the terms “damage or injury”

with “the birth of the child with the DMD disorder,” leading it to the

conclusion that the damage or injury necessarily arose from the

“genetic counseling and screening,” and thus, the lawsuit was

barred by section 13-64-502(1). The district court further

concluded that section 13-64-502(1)’s exception did not apply

because the DMD disorder could not have been prevented or

12
avoided even if defendants had exercised an ordinary standard of

care.

¶ 21 We conclude that this interpretation does not effectuate the

intent of the General Assembly because, as discussed below, it does

not give effect to all the words in the statute.

C. “Damage or Injury”

¶ 22 We begin our analysis with two principles of statutory

construction.

¶ 23 First, we must presume that the General Assembly is aware of

court precedent. Carrera v. People, 2019 CO 83, ¶ 29 (“The

legislature’s actions (and inactions) are significant because when

the legislature amends a statute, it is presumed that it ‘is aware of,

and approves of, case law interpreting that statute.’” (quoting Diehl

v. Weiser, 2019 CO 70, ¶ 25)); see also People v. Swain, 959 P.2d

426, 430-31 (Colo. 1998) (“Under an established rule of statutory

construction, the legislature is presumed, by virtue of its action in

amending a previously construed statute without changing the

portion that was construed, to have accepted and ratified the prior

judicial construction.”). Although the 1989 amendment does not

specifically reference Lininger, the expanded language implicitly

13
recognizes that case’s holding by referring to “genetic counseling

and screening” and adding the word “damage.”

¶ 24 Second, when the same word or phrase is repeated in the

same statutory provision or scheme, unless otherwise indicated by

the General Assembly, we must presume the repeated word or

phrase has the same meaning throughout. People v. Delgado, 2016

COA 174, ¶ 16, aff’d, 2019 CO 82.

¶ 25 Because the 1989 amendment added “damage” as a type of

recovery subject to the statutory bar and exception, a claimant

could base a negligence claim on damage or injury (or both)

sustained from the medical professional. Given that the General

Assembly amended the statute to apply to both “damage” and

“injury,” we must give effect to each. See City & Cnty. Denver v.

Indus. Claim Appeals Off., 2021 COA 146, ¶ 12.

¶ 26 Damages represent a measure of loss or harm that results

from some injury suffered because of an unlawful or negligent act

or omission. See Wilcox v. Clark, 42 P.3d 29, 30 (Colo. App. 2001);

see also Black’s Law Dictionary 488 (12th ed. 2024) (defining

“damages” as “compensation for loss or injury”); Merriam-Webster

14
Dictionary, https://perma.cc/56X9-JEUE (defining “damages” as

“compensation in money imposed by law for loss or injury”).

¶ 27 In the tort context, an injury is often associated with some

hurt or loss sustained. See Black’s Law Dictionary 935 (12th ed.

2024) (defining “injury” as the “violation of another’s legal right, for

which the law provides a remedy”); Merriam-Webster Dictionary,

https://perma.cc/5AB3-X74T (defining “injury” as “hurt, damage,

or loss sustained”).

¶ 28 A damage or injury is but one of the elements to be proven in a

negligence claim based on medical malpractice. See Day v.

Johnson, 255 P.3d 1064, 1068–69 (Colo. 2011) (outlining the

elements of negligence in medical malpractice actions). Like other

types of medical malpractices cases, damage or injury to parents

arising from negligent genetic counseling and screening can include

extraordinary medical expenses and special education expenses

incurred while the child remains their legal dependent.3 See

Lininger, 764 P.2d at 1207. Indeed, Lininger identified these

3 Colorado imposes certain statutory limitations on damages in

medical malpractice cases. See, e.g., §§ 13-64-301 to -302.5, C.R.S.
2024.

15
expenses as types of damages that may be awarded when a

physician provides negligent medical advice to parents seeking to

avoid having a child with a hereditary medical condition. Id. at

1206-07; see also Vitetta v. Corrigan, 240 P.3d 322, 329 (Colo. App.

2009) (allowing damages for life care plan for child requiring twenty-

four-hour care for life); Kinsella v. Farmers Ins. Exch., 826 P.2d 433,

435 (Colo. App. 1992) (parents may recover medical expenses

incurred). And without damage, a negligence claim is not

actionable. See Thompson v. Riveland, 714 P.2d 1338, 1340-41

(Colo. App. 1986) (proof of compensable harm or damages is

necessary for liability for negligence); Nunn v. Mid-Century Ins. Co.,

215 P.3d 1196, 1199 (Colo. App. 2008) (recognizing that “a wrong

without damage . . . is not actionable” (quoting 1 Stuart M. Speiser,

Charles F. Krause & Alfred W. Gans, American Law of Torts § 1:11

(1983))), rev’d on other grounds, 244 P.3d 116 (Colo. 2010).

¶ 29 In other words, the General Assembly’s selected phrase,

“damage or injury,” is broader than the genetic disorder itself. See

Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo.

2008) (Courts “give effect to every word and render none

superfluous because [they] ‘do not presume that the legislature

16
used language idly and with no intent that meaning should

be given to its language.’” (quoting Colo. Water Conservation Bd. v.

Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597

(Colo. 2005))). The district court erred by conflating the type of

medical negligence — here, one involving genetic counseling or

screening — with the separately provable “damage or injury” —

meaning the loss or harm caused by the allegedly substandard

counseling or screening. Surely the label given to the type of

medical negligence cannot determine the scope of the medical

professionals’ liability. A negligent genetic counseling or screening

case is merely a subset of medical negligence, which, in turn, is a

subset of the broader tort of negligence. See Greenberg v. Perkins,

845 P.2d 530, 534 (Colo. 1993); Am. Econ. Ins. Co. v. Schoolcraft,

551 F. Supp. 2d 1235, 1241-42 (D. Colo. 2007) (predicting that the

Colorado Supreme Court would agree that a claim alleging “failure

to perform genetic screening” as part of fertility services is a claim

requiring application of a professional standard of care under

section 13-64-502(1)).

17
D. The Exception

¶ 30 As the parents concede, a health care professional’s exercise of

the ordinary standard of care could not have prevented or avoided

the children’s inheritance of the DMD gene from Maldonado, who is

a carrier of that gene. But this is where the exception comes into

play. A claim is not barred if “the claimant can establish by a

preponderance of the evidence that the damage or injury could have

been prevented or avoided” had the health care professional used

an ordinary standard of care. § 13-64-502(1) (emphasis added).

The parents allege that defendants failed to use an ordinary

standard of care in providing the genetic counseling they sought

that led to their damages, measured by the increase cost to care for

the children’s medical expenses. Unfortunately, the district court’s

limiting construction of the statutory language led it to reject

parents’ claim because, as interpreted by the court, the claimed

injury — the birth of the children with DMD — could not have been

prevented or avoided had the medical professionals used an

ordinary standard of care. But, as Lininger recognized, parents may

be compensated for the birth of a child born with an impairment

18
with monetary damages due to expenses resulting from the

impairment because of a health care professional’s negligence.

¶ 31 Thus, under the exception, a negligence claim may go forward

if “the damage or injury could have been prevented or avoided” by a

health care team’s exercise of the ordinary standard of care. § 13-

64-502(1) (emphasis added). To “avoid” a certain outcome may

encompass efforts to stop the chance of such outcome happening at

all, such as, in this case, by giving reliable advice that would have

“avoided” the pregnancy entirely and, thus, “avoided” the resulting

expenses associated with the care of the children. See Black’s Law

Dictionary 167 (“[A]void means to “render void,” and “prevent”

means to “stop from happening.”). And “prevented” could indicate

that the health care professionals’ negligent advice deprived

Maldonado of her ability to stop (or end) her pregnancies and avert

the expenses that have been incurred and may be incurred in the

future for the DMD-affected children. See Merriam-Webster

Dictionary, https://perma.cc/L8AF-H252 (defining “prevent” as “to

keep from happening”). While “prevented” and “avoided” may be

similar by definition, we must assume the General Assembly did not

idly add words to the statute when it amended it, and therefore, the

19
words must have different (albeit closely related) meanings. See

Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 25.

¶ 32 Because the district court’s interpretation read out the word

“damage,” the court did not fully consider the recoverability of the

various types of damages parents alleged to have resulted from the

health care professionals’ negligence that could have been

“prevented or avoided,” leading to the erroneous dismissal of

parents’ claims. As detailed below, because parents’ claims fall

under section 13-64-502(1)’s exception, we turn to whether parents

adequately pled factual allegations to withstand dismissal under

C.R.C.P. 12(b)(5).

E. Plaintiffs Have Adequately Pled a Claim to Withstand
Dismissal Under Rule 12(b)(5)

¶ 33 “Medical malpractice is a particular type of negligence action.”

Greenberg, 845 P.2d at 534. The plaintiff must prove the following

elements to establish negligence for a medical malpractice claim:

(1) the defendant had a legal duty of care; (2) the defendant

breached that duty; (3) the plaintiff was injured; and (4) the

defendant’s breach caused the plaintiff’s injury. Day, 255 P.3d at

1068–69.

20
¶ 34 The parents have stated valid medical negligence claims based

on defendants’ alleged failure to provide accurate information to

properly inform their family planning decision. The allegations in

the complaint, if accepted as true, would entitle them to relief.

¶ 35 The complaint included allegations that GeneDx Defendants

owed parents a duty to provide laboratory studies, reports, record

keeping, and sample management “in accord with the state of the

art at the time” and that a physician-patient relationship existed

between Maldonado and Hospital Defendants. And medical

professionals recommended that Maldonaldo seek genetic

counseling because she wanted to “avoid” having children if she

could pass on the DMD genetic mutation.

¶ 36 As to the breach of those duties, parents alleged that

(1) whether via a “mix-up of samples,” “lab error,” or “result reading

error,” GeneDx Defendants reported a false-negative result of

Maldonado’s genetic sample; and (2) Hospital Defendants neither

warned Maldonado of the test’s potential to report a false negative

nor conducted testing of elevated levels of creatine kinase, a marker

of ongoing muscle injury. Due to these breaches, Maldonado

conceived and birthed the children, which led to plaintiffs incurring

21
extraordinary medical and education expenses as a result of J.M.C.

developing DMD and J.A.C. being a carrier of DMD. Parents claim

damages as it relates to their expenses for medical support,

physical limitations, respiratory complications, cardiovascular

issues, reduced life expectancy, and lost future earning capacity

from the children’s DMD diagnosis.

¶ 37 In other words, parents seek “damages” in the form of

extraordinary medical expenses and other costs incurred from the

defendants’ negligence “in either misinforming them or failing to

inform them about the likelihood that their child would be born

with a birth defect or impairment” that could have been prevented

or avoided because parents would not have conceived. Lininger,

764 P.2d at 1204; see also Dotson v. Bernstein, 207 P.3d 911, 914

(Colo. App. 2009) (recognizing that “because damages were a

necessary component of the viability of the [negligence] claim,”

Lininger identified “at least some consequential damages that could

be proved and recovered”), abrogated on other grounds by Semler v.

Hellerstein, 2016 COA 143.

¶ 38 Thus, the parents adequately pled a medical negligence claim

against defendants.

22
F. The Children’s Claims

¶ 39 The district court found, plaintiffs concede, and we agree that

the children’s “loss of enjoyment of a natural life” claim is barred by

Lininger. Although Lininger recognized that parents may be

compensated for damages due to a physician’s negligent advice or

counseling when a child is born with an impairment, the court

concluded that “wrongful life” — i.e., a child’s claim — is not a

cognizable injury. The court reasoned that, “however impaired [the

child may be] and regardless of any attendant expenses, [it] cannot

rationally be said to be a detriment to [the]m when measured

against the alternative of [their] not having existed at all.” Lininger,

764 P.2d at 1212.

¶ 40 On appeal, it is unclear whether plaintiffs have abandoned

their claims relating to the children. Although plaintiffs contend

that the children are entitled to pre-majority damages, they skip

over whether the children possess cognizable claims upon which to

recover those damages. To the extent plaintiffs did not abandon the

children’s separate claims for relief, we conclude that those claims

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are barred by Lininger. And plaintiffs do not cite any other

statutory provision as a foundation for their claims.4

¶ 41 We therefore affirm the court’s dismissal of the children’s

claims.

G. The Parents’ Post-Majority Damages

¶ 42 Because the district court held that section 13-64-502(1) bars

plaintiffs’ claims, it did not rule on whether parents can recover the

children’s post-majority economic damages. Parents urge us to

decide this issue in light of the supreme court’s recent opinion in

Rudnicki v. Bianco, 2021 CO 80, ¶ 2, which held, in part, that in

tort cases involving an injured unemancipated minor child, either

the child or their parents may recover the child’s pre-majority

medical expenses.

¶ 43 In Dotson, a division of this court declined to address the

plaintiff’s request for consequential damages after concluding that

her complaint complied with C.R.C.P. 8. In that case, the plaintiff

had a similar Lininger claim. The division declined to address

4 Even if we agreed with plaintiffs’ interpretation of section 13-64-

502(1), C.R.S. 2024, we question whether J.M.C. would have a
cognizable claim, as she is only a carrier of the DMD gene.

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damages, though, because the litigation was in its early stage, and

on appeal, the “plaintiff was merely required to set forth a legally

cognizable injury causing harm for which she was entitled to some

relief.” Dotson, 207 P.3d at 914-15.

¶ 44 Also, “[w]e do not consider ‘arguments never presented to,

considered or ruled upon by’ the district court” and therefore,

decline to address this issue further. Core-Mark Midcontinent Inc. v.

Sonitrol Corp., 2016 COA 22, ¶ 24 (quoting Est. of Stevenson v.

Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)).

IV. Conclusion

¶ 45 The portion of the district court’s order dismissing the parents’

claims is reversed, and those claims are reinstated. But the district

court’s dismissal of the children’s claims is affirmed. And we

decline to address the parents’ contentions related to damages. We

remand the case to the district court for further proceedings.

JUDGE FOX and JUDGE SCHOCK concur.

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