Alexander Rudnicki and Francis Rudnicki as parents, guardians, and nextfriends and Pamela Rudnicki, as parents, guardians, and next friends v. Peter Bianco, D.O.

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 2, 2023

2023COA103

No. 22CA1246, Rudnicki v. Bianco — Professional Liability —
Medical Malpractice — Pre-Majority Medical Expenses;
Remedies — Interest on Damages — Prejudgment Interest;
Health and Welfare — Health Care Availability Act — Limitation
of Liability

In this medical malpractice action, a division of the court of

appeals rejects the defendant doctor’s contention that the district

court should have computed prefiling, prejudgment interest on the

jury’s award of pre-majority medical expenses to the minor plaintiff

from the date the Colorado Supreme Court decided Rudnicki v.

Bianco, 2021 CO 80, which abolished the common law rule

precluding minors from recovering that category of damages. The

division concludes that Rudnicki did not alter the date from which

prefiling, prejudgment interest is calculated under section 13-21-

101(1), C.R.S. 2023. Thus, the division concludes that the plaintiff
was entitled to prefiling, prejudgment interest on his pre-majority

medical expenses from the date his cause of action accrued.

The division also rejects the doctor’s contention that the

district court erred by awarding prefiling, prejudgment interest in

an amount that would make the total award exceed the $1 million

damages limitation under the Health Care Availability Act (HCAA),

section 13-64-302(1)(b), C.R.S. 2023. Generally following the

rationale of Scholle v. Ehrichs, 2022 COA 87M, ¶ 107 (cert. granted

Apr. 10, 2023), the division concludes that prefiling, prejudgment

interest on past and future economic damages may exceed the $1

million cap in the HCAA, provided the other statutory requirements

for exceeding the cap are met.
COLORADO COURT OF APPEALS 2023COA103

Court of Appeals No. 22CA1246
El Paso County District Court No. 14CV34013
Honorable David A. Gilbert, Judge

Alexander Rudnicki; and Francis Rudnicki as parents, guardians, and next
friends; and Pamela Rudnicki, as parents, guardians, and next friends,

Plaintiffs-Appellees,

v.

Peter Bianco, D.O.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE BROWN
Tow and Schock, JJ., concur

Announced November 2, 2023

Wahlberg, Woodruff, Nimmo & Sloane LLP, David S. Woodruff, Megan K.
Matthews, Denver, Colorado, for Plaintiffs-Appellees

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Peter Bianco, D.O., appeals the district court’s

entry of judgment on the jury’s award of damages for pre-majority

medical expenses to plaintiff, Alexander Rudnicki.1 Dr. Bianco

contends that the court erred by awarding prefiling, prejudgment

interest on those damages (1) from the date Alexander was born

(the date of injury) rather than the date the Colorado Supreme

Court determined he was entitled to recover such expenses in

Rudnicki v. Bianco, 2021 CO 80; and (2) resulting in a total award

in excess of the $1 million damages limitation under the Health

Care Availability Act (HCAA), section 13-64-302(1)(b), C.R.S. 2023.

¶2 Resolving Dr. Bianco’s first contention requires us to

determine the impact of Rudnicki, if any, on the date from which

prefiling, prejudgment interest on an award of pre-majority medical

expenses should be calculated. Dr. Bianco contends that because

Alexander was not entitled to recover his pre-majority medical

expenses as a measure of damages until Rudnicki abolished the

1 We refer to Alexander by his first name because that is how the

supreme court referred to him in Rudnicki v. Bianco, 2021 CO 80.
We intend no disrespect by doing so. Alexander’s parents, Francis
and Pamela Rudnicki were originally individual plaintiffs as well but
as discussed below, infra Part I, their individual claims were
dismissed.

1
common law rule precluding such recovery, interest should accrue

from the date of the supreme court’s ruling rather than from the

date of Alexander’s birth. Based on the plain language of sections

13-21-101(1) and 13-80-108(1), C.R.S. 2023, we conclude that

Alexander is entitled to collect prefiling, prejudgment interest on his

pre-majority medical expenses from the date his cause of action

accrued, which was the date of his birth.

¶3 Resolving Dr. Bianco’s second contention requires that we

consider whether prefiling, prejudgment interest on economic

damages may be awarded in an amount that would make the total

award exceed the $1 million damages limitation under the HCAA.

We generally agree with the rationale of Scholle v. Ehrichs, 2022

COA 87M, ¶ 107 (cert. granted on other grounds Apr. 10, 2023),

which held that “prefiling, prejudgment interest is part of ‘damages’

capped under the HCAA, subject to being uncapped upon a

showing of good cause and unfairness.” See § 13-64-302(1)(b).

Prefiling, prejudgment interest on Alexander’s pre-majority medical

expenses is a part of his past and future economic damages. And

the district court found the requisite good cause and unfairness to

award past and future economic damages exceeding the HCAA

2
damages limitation. Thus, we conclude that Alexander is entitled to

prefiling, prejudgment interest on his pre-majority medical

expenses from the date of his birth, without limitation.

I. Background and Procedural History

¶4 On October 5, 2005, Alexander was severely injured when Dr.

Bianco negligently performed an operative vaginal delivery using a

vacuum extractor to assist in his birth. Alexander suffered scalp

abrasions and bruising on his skull and required immediate,

intensive medical treatment. As a result of his injuries, Alexander

has required and will require ongoing physical, occupational, and

speech therapy. Alexander has intellectual disabilities and is

enrolled in special education. He is unlikely to be able to live

independently in the future. See Rudnicki, ¶ 4.

¶5 In 2014, Francis and Pamela Rudnicki, in their individual

capacities and as parents, guardians, and next friends of Alexander,

sued Dr. Bianco for medical malpractice. The parents’ individual

claims against Dr. Bianco were dismissed as time barred, and the

case proceeded to a jury trial with Alexander as the sole plaintiff.

See id. at ¶ 5; see also § 13-80-102.5(1), (3)(d)(II), C.R.S. 2023.

3
¶6 After a two-week trial, a jury found that Dr. Bianco had acted

negligently, causing Alexander injuries, and awarded Alexander a

total of $4 million in damages, including more than $3.6 million in

past and future economic damages. As relevant to this appeal,

those economic damages included $391,000 for past medical

expenses Alexander had already incurred and future medical

expenses he would probably incur from the date of judgment until

he reached age eighteen (pre-majority medical expenses).2 See

Rudnicki, ¶ 5.

¶7 Arguing that the common law only allowed Alexander’s

parents, not Alexander himself, to recover pre-majority medical

expenses, see Pressey v. Child.’s Hosp. Colo., 2017 COA 28, ¶ 26,

and that the parents’ claims were time barred, Dr. Bianco moved

the district court to reduce Alexander’s damages award by the

2 The jury awarded Alexander $325,000 for past medical expenses

and $110,000 for future medical expenses he would probably incur
until he reaches age twenty-two. Dr. Bianco did not challenge forty
percent, or $44,000, of the $110,000 award, which is the proportion
of future medical expenses Alexander would probably incur after
age eighteen (his current age) but before he turns twenty-two.
Thus, this appeal relates only to prejudgment interest on pre-
majority medical expenses Alexander would probably incur before
he turned eighteen.

4
amount the jury attributed to his pre-majority medical expenses.

Reasoning that it was bound by Pressey, the court reduced the

damages award by $391,000.

¶8 Dr. Bianco also moved the court to reduce Alexander’s total

award to $1 million, citing the damages limitation in section 13-64-

302(1)(b) of the HCAA. But the court found that there was good

cause to exceed the damages cap. It reasoned that applying the cap

in this case would be “manifestly unfair” to Alexander given the

substantial evidence presented at trial regarding his life-long need

for “constant supervision” and “considerable assistance with

performing the basic tasks of living that most of us take for

granted,” and his inability to contribute in any meaningful way to

the costs of such care. The court concluded that the jury’s findings

were the proper measure of the fair, reasonable, and necessary

damages Alexander incurred and declined to further reduce the

award.

¶9 Finally, Dr. Bianco moved the court to apply the HCAA

damages cap to limit Alexander’s recovery of prejudgment interest

for the period beginning on the date the action accrued and ending

on the date the complaint was filed (prefiling, prejudgment interest),

5
citing section 13-64-302(2). Because Alexander’s damages award

exceeded the $1 million cap, Dr. Bianco argued that no prefiling,

prejudgment interest should be awarded.

¶ 10 The court did not initially resolve whether prefiling,

prejudgment interest was subject to the $1 million cap and instead

ordered Alexander’s counsel to file a proposed order “to include

prejudgment and post-judgment interest” based on the modified

award of damages. Alexander’s counsel submitted two proposed

orders, one that capped prefiling, prejudgment interest and one that

did not. Ultimately, the court entered judgment in favor of

Alexander in the amount of $4,633,174.59, consisting of

$3,554,000 in damages plus $1,079,174.59 in prejudgment interest

calculated from the date the suit was filed to the date of judgment

(post-filing, prejudgment interest). The court explained that its

prior “reference to prejudgment interest was meant to include

interest from the date of the filing of the complaint and not pre-

filing interest.”

¶ 11 Alexander appealed the district court’s decision to reduce the

judgment by the amount of pre-majority medical expenses. See

Rudnicki v. Bianco, (Colo. App. No. 18CA0215, June 6, 2019) (not

6
published pursuant to C.A.R. 35e)). A division of this court

affirmed, concluding that Alexander was not entitled to recover pre-

majority medical expenses under the then-existing common law

rule. See id.

¶ 12 Alexander then petitioned for certiorari review by the Colorado

Supreme Court. See Rudnicki, ¶ 10. The supreme court granted

certiorari, in relevant part, to decide whether to adhere to the

common law rule under which only a minor plaintiff’s parents may

recover tort damages for medical expenses incurred by their

unemancipated minor child. See id. at ¶ 1 n.1. The supreme court

reasoned that the traditional rationales for the common law rule no

longer apply and that the realities of the modern health care

economy compelled it to abandon the common law rule and to

conclude that either the unemancipated minor child or their

parents may recover the child’s pre-majority medical expenses,

although double recovery is not permitted. See id. at ¶ 2. The

supreme court reversed the decision of the division, overruled

Pressey, and remanded for further proceedings. Id. at ¶¶ 44, 49.

¶ 13 On remand, the parties agreed that, following Rudnicki,

judgment should be entered in Alexander’s favor for $391,000 in

7
damages for pre-majority medical expenses. But they disputed

when prejudgment interest began to accrue and how much

prejudgment interest could be awarded.

¶ 14 Alexander requested $319,120.27 in prefiling, prejudgment

interest, calculated from the date the action accrued — October 5,

2005 — until the date the complaint was filed, and another

$647,233.30 in post-filing, prejudgment interest, calculated from

the date the complaint was filed — October 31, 2014 — until the

date the judgment entered. Dr. Bianco argued that Alexander was

only entitled to prejudgment interest from the date the supreme

court issued Rudnicki — December 13, 2021 — for a total of

$15,876.89. Alternatively, Dr. Bianco argued that Alexander was

not entitled to recover any prefiling, prejudgment interest because

he had already been awarded “the maximum total amount

allowable” under the HCAA damages limitation. But Dr. Bianco

agreed that Alexander could recover post-filing, prejudgment

interest from the date the complaint was filed until the date the

judgment was entered, for a total of $360,636.28.

¶ 15 The district court adopted Alexander’s proposed form of

judgment, which included prefiling, prejudgment interest calculated

8
from the date Alexander was born, as well as post-filing,

prejudgment interest calculated from the date the complaint was

filed. The court further ordered that its prior decision that

Alexander’s damages could exceed the $1 million cap under the

HCAA “still applie[d],” so the cap did not limit the amount that

could be recovered as prejudgment interest.

II. Analysis

¶ 16 The only issue remaining for us to decide on appeal is whether

the district court erred by including in its final judgment prefiling,

prejudgment interest on Alexander’s pre-majority medical expenses,

calculated from his date of birth. We first determine the date from

which the prefiling, prejudgment interest should be calculated

under section 13-21-101(1). We then determine whether such

interest should be limited by section 13-64-302(1)(b).

A. Standard of Review

¶ 17 Dr. Bianco’s contentions require that we interpret and apply

several Colorado statutes, which we do de novo. See McCulley v.

People, 2020 CO 40, ¶ 10. In construing a statute, we aim to

effectuate the legislature’s intent by giving the language its plain

and ordinary meaning. See id. “We must interpret the statute as a

9
whole and in the context of the entire statutory scheme, giving

consistent, harmonious, and sensible effect to all its parts.” Id.

¶ 18 If the plain language is clear and unambiguous, we apply the

statute as written and look no further. See Nieto v. Clark’s Mkt.,

Inc., 2021 CO 48, ¶ 12. However, if a statute is ambiguous — “that

is, reasonably susceptible [of] more than one interpretation” — we

turn to other interpretive aids to discern the legislature’s intent. Id.

at ¶ 13. These aids include legislative history, the end to be

achieved by the statute, and the consequences of a given

construction. § 2-4-203, C.R.S. 2023; see Morris v. Goodwin, 185

P.3d 777, 779 (Colo. 2008).

B. Prefiling, Prejudgment Interest May Be Recovered from
the Date the Cause of Action Accrued

¶ 19 Dr. Bianco contends that the district court erred by awarding

prefiling, prejudgment interest from Alexander’s date of birth

because he was not legally entitled to those damages until the

supreme court’s decision in Rudnicki. Based on the plain language

of the governing statutes, we disagree.

¶ 20 Prejudgment interest on damages awarded in a personal injury

action is specifically authorized by section 13-21-101(1). Seaward

10
Constr. Co. v. Bradley, 817 P.2d 971, 973 (Colo. 1991). Under that

statute, a plaintiff may recover prejudgment interest on damages

“from the date the action accrued” until the day before the

complaint was filed — prefiling, prejudgment interest — and from

the date the complaint was filed to the date judgment entered —

post-filing, prejudgment interest. § 13-21-101(1); Ochoa v. Vered,

212 P.3d 963, 970 (Colo. App. 2009).

¶ 21 The legislature has defined when a personal injury action

accrues in section 13-80-108(1): “[A] cause of action for injury to [a]

person . . . shall be considered to accrue on the date both the injury

and its cause are known or should have been known by the exercise

of reasonable diligence.” See Jones v. Cox, 828 P.2d 218, 223 (Colo.

1992) (“We hold that a cause of action accrues on the date that both

the physical injury and its cause were known or should have been

known by the exercise of reasonable diligence.”); see also § 13-80-

102.5(1).

¶ 22 Based on the plain language of the applicable statutes, which

are clear and unambiguous on this point, Alexander may recover

prejudgment interest on his damages from the date his injury and

its cause were known or should have been known by the exercise of

11
reasonable diligence. See §§ 13-21-101(1), 13-80-102.5(1), 13-80-

108(1). It is undisputed that Alexander’s injury and its cause were

known on the date of his birth, October 5, 2005. Alexander’s action

against Dr. Bianco accrued on that date, and he is entitled to

prefiling, prejudgment interest from that date to the day before his

complaint was filed. See § 13-21-101(1); Ochoa, 212 P.3d at 970.

¶ 23 Despite the statutes’ plain language, Dr. Bianco contends that

“Colorado law has not addressed at what point prejudgment

interest begins to accrue when the law changes to allow a plaintiff

to recover a new category of damages after the plaintiff’s cause of

action accrues.” Dr. Bianco essentially asks us to hold that a cause

of action accrues for purposes of computing interest under section

13-21-101(1) when the plaintiff becomes legally entitled to a

particular category of damages. Because Alexander became legally

entitled to recover pre-majority medical expenses when the supreme

court decided Rudnicki, Dr. Bianco argues that the date of the

decision should be the date from which interest on that category of

damages is calculated. He argues that section 13-21-101 is “silent”

as to when prejudgment interest may be recovered under these

circumstances and encourages us to look to the legislature’s intent

12
in authorizing prejudgment interest to determine the statute’s

meaning. For four reasons, we are not persuaded.

¶ 24 First, the date a personal injury action accrues does not

depend on when the plaintiff incurs a specific category or amount of

damages. The word “injury” in section 13-80-108(1) means

“physical injury,” not “injury upon which a claimant can sustain a

cause of action.” Jones, 828 P.2d at 223; see also Brodeur v. Am.

Home Assurance Co., 169 P.3d 139, 147 n.8 (Colo. 2007) (“We note

that an injury is different from the damages that flow from the

injury.”). If the plaintiff is able to “ascertain whether she has

sustained any damage,” the “fact of injury” is known for purposes of

accrual. Dove v. Delgado, 808 P.2d 1270, 1273-74 (Colo. 1991).

“Pursuant to the language of section 13-80-108(1), damages do not

need to be known before accrual of a claim.” Brodeur, 169 P.3d at

147 n.8; see also Taylor v. Goldsmith, 870 P.2d 1264, 1266 (Colo.

App. 1994) (a plaintiff’s claim accrues “on the date the fact of injury

and its cause are known or should have been known”; the

“plaintiff’s uncertainty as to the full extent of the damages does not

prevent the filing of a timely complaint”).

13
¶ 25 Second, although Rudnicki held that a minor child is entitled

to recover a new category of damages, it did not create a new cause

of action. Rudnicki, ¶ 46. The supreme court emphasized that its

decision answered “the narrow question of who may seek a specific

remedy when an unemancipated minor is injured. It does not create

a new class of claims for the court to adjudicate. Nor does it impose

new duties or obligations on the parties.” Id. (emphasis added).

Section 13-21-101 is plainly concerned with the date the “action”

accrued. Because Rudnicki did not create a new “action,” it does

not impact the date from which prejudgment interest is calculated

under that statute.

¶ 26 We are not persuaded otherwise by the out-of-state cases Dr.

Bianco cites because they are distinguishable either based on the

unique language of the applicable interest statute or because the

change in the law created a new right to maintain an action rather

than a new right to seek a specific remedy. See Diaz v. State, 2016

MT 270, ¶ 12 (the applicable statute provided that prejudgment

interest was recoverable from the day that the “right to recover . . .

is vested in the person” (quoting Mont. Code Ann. § 27-1-211 (West

2023))); Cardi Corp. v. State, 561 A.2d 384, 385-88 (R.I. 1989) (the

14
applicable statute calculated interest from “the date the cause of

action accrued,” but the court concluded that the plaintiff’s claim

did not accrue until the legislature passed an act that waived

sovereign immunity, which first gave the plaintiff the “right to sue

the state”).

¶ 27 Third, we are not persuaded by the distinction Dr. Bianco

draws between the accrual of a cause of action and the entitlement

to a specific category of damages. Dr. Bianco contends that

prefiling, prejudgment interest on Alexander’s pre-majority medical

expenses “cannot logically compensate [Alexander] for the loss of

such damages during a period in which he was not entitled to

recover them.” True, as Dr. Bianco points out, a plaintiff is only

entitled to interest on damages to which they are legally entitled.

See Morris, 185 P.3d at 780 (the plaintiff was not entitled to interest

on damages awarded by the jury that exceeded defendant’s

proportion of comparative fault or that exceeded the HCAA’s cap on

noneconomic damages); see also Allstate Ins. Co. v. Starke, 797 P.2d

14, 19 (Colo. 1990) (Prejudgment interest “represents a legislatively

prescribed award for any delay in plaintiff’s receipt of money to

which he has been found legally entitled.” (quoting Houser v.

15
Eckhardt, 35 Colo. App. 155, 160-61, 532 P.2d 54, 57 (1974))). But

that unremarkable tenet says nothing about the date from which

such interest should be calculated once the plaintiff becomes legally

entitled to damages. Section 13-21-101(1) does. Even though

Alexander did not become “legally entitled” to pre-majority medical

expenses until the supreme court decided Rudnicki, now that he is

legally entitled to those damages, section 13-21-101(1) allows him

to claim interest “from the date the action accrued.” (Emphasis

added.) We are not at liberty to rewrite the statute. See Yen, LLC v.

Jefferson Cnty. Bd. of Comm’rs, 2021 COA 107, ¶ 32.

¶ 28 We acknowledge that the supreme court has determined that

prejudgment interest cannot be awarded on punitive damages in

part because the “right to punitive damages does not exist until

such damages are awarded by a trier of fact.” Seaward Constr. Co.,

817 P.2d at 976. But a complete reading of Seaward Construction

reveals that its result was driven by the different purposes for

awards of punitive damages and awards of compensatory damages

and prejudgment interest.

¶ 29 The supreme court reasoned that punitive damages “are a

distinct form of damages awarded for a particular purpose” — “not

16
as compensation to the injured party for the wrong done, but as a

punishment of the wrongdoer as an example to others.” Id. at 973-

74 (quoting Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 440,

263 P.2d 815, 817 (1953)). By comparison, compensatory damages

“are awarded to cover loss caused by the negligence of another and

are intended to make the injured party whole.” Id. at 975.

¶ 30 To that end, “[t]he addition of prejudgment interest to a

judgment for compensatory damages recognizes that the loss

caused by the tortious conduct occurred at the time of the resulting

injury but that the damages paid to compensate for that loss are

not received by the injured party until later.” Id. Such interest is “a

component of damages rather than interest as such” and is meant

to compensate the plaintiff for “the time value of the award

eventually obtained against the tortfeasor.” Id. at 976 (quoting

Starke, 797 P.2d at 19); see also Old Republic Ins. Co. v. Ross, 180

P.3d 427, 437 (Colo. 2008).

¶ 31 “The same cannot be said of prejudgment interest on punitive

damages,” which “do not compensate for loss resulting from the

injury” and to which the injured party has “no entitlement of any

kind . . . unless and until awarded by the trier of fact.” Seaward

17
Constr. Co., 817 P.2d at 975. Prejudgment interest on punitive

damages “would serve merely as an additional penalty and is not

necessary to make the injured party whole.” Id. at 976. Thus,

allowing prejudgment interest on punitive damages “would be

inconsistent with the compensatory purpose of section 13-21-101.”

Id. The supreme court concluded that prejudgment interest is not

authorized on an award of punitive damages. Id. at 979.

¶ 32 Because the prefiling, prejudgment interest at issue in this

case is a component of compensatory damages intended to make

Alexander whole for a loss he suffered at birth — even though he

did not become legally entitled to that category of damages until

Rudnicki — an award of such interest is consistent with the

compensatory purpose of section 13-21-101.

¶ 33 Fourth, we disagree with Dr. Bianco that our interpretation is

contrary to legislative intent. As just discussed, awarding prefiling,

prejudgment interest from Alexander’s date of birth furthers the

compensatory purpose of the statute. But Dr. Bianco argues that

awarding nearly seventeen years of prejudgment interest has “the

punitive effect of dramatically increasing [Dr. Bianco’s] liability

without serving the intended purpose of such interest.” He further

18
asserts that such an award is unfair because it punishes him

“solely because the supreme court determined that changing

circumstances wholly beyond [his] control justified changing the

law on which [he] relied.”3 In essence, Dr. Bianco argues that our

plain language interpretation leads to an absurd result.

¶ 34 Although we must avoid interpretations that lead to absurd

results, we may only disregard the plain language of a statute

“when the resultant absurdity is ‘so gross as to shock the general

moral or common sense.’” Dep’t of Transp. v. City of Idaho Springs,

192 P.3d 490, 494 (Colo. App. 2008) (quoting Crooks v. Harrelson,

282 U.S. 55, 60 (1930)). Short of that, it is the legislature’s

responsibility to address unintended consequences and undesirable

results. Id.

3 Dr. Bianco asserts that awarding prefiling, prejudgment interest in

this case does not serve to deter a defendant from wrongfully
withholding payment. This argument appears to relate to section
5-12-102, C.R.S. 2023, rather than section 13-21-101, C.R.S. 2023.
Although prejudgment interest under the former statute is
calculated from “the date of wrongful withholding,” § 5-12-102(1)(a),
interest under the latter statute is calculated from “the date the
action accrued,” § 13-21-101(1). See also Colwell v. Mentzer Invs.,
Inc., 973 P.2d 631, 641 (Colo. App. 1998).

19
¶ 35 Seventeen years of interest on medical expenses Alexander

incurred because he was injured at birth seventeen years ago by Dr.

Bianco’s negligence does not shock the general moral or common

sense. The result does not justify overriding the plain language of

the statute. See id.; Ryser v. Shelter Mut. Ins. Co., 2019 COA 88,

¶ 45 (policy considerations did not justify disregarding the plain

language of the applicable statute).

¶ 36 Accordingly, we conclude that the district court did not err by

awarding Alexander prefiling, prejudgment interest from the date

his cause of action accrued, which was his date of birth.

C. Interest in Excess of the HCAA Damages Limitation

¶ 37 Dr. Bianco contends that the district court erred by awarding

prefiling, prejudgment interest resulting in a total award that

exceeds the $1 million damages limitation in the HCAA. We

conclude that the plain language of section 13-64-302 supports the

award.

20
1. Prefiling, Prejudgment Interest on Economic Damages
May Exceed the Damages Limitation in the HCAA

¶ 38 The HCAA limits the “total amount recoverable for all

damages” in a medical malpractice action to “one million dollars.”

§ 13-64-302(1)(b). But there is an exception to the limitation:

[I]f, upon good cause shown, the court
determines that the present value of past and
future economic damages would exceed such
limitation and that the application of such
limitation would be unfair, the court may
award in excess of the limitation the present
value of additional past and future economic
damages only.

Id. The HCAA also limits noneconomic damages to $300,000,

without exception. § 13-64-302(1)(b), (c). Prefiling, prejudgment

interest awarded pursuant to section 13-21-101 “is deemed to be a

part of the damages awarded in the action for the purposes of this

section and is included within each of the limitations on liability.”

§ 13-64-302(2).

¶ 39 Thus, prefiling, prejudgment interest is an element of damages

subject to the $1 million damages cap. See id.; see also Seaward

Constr. Co., 817 P.2d at 976. But if the court finds the requisite

good cause and unfairness, can prefiling, prejudgment interest be

awarded if doing so results in a total award beyond the cap?

21
¶ 40 A division of this court recently answered this question

affirmatively. See Scholle, ¶¶ 103-108. The Scholle division

reasoned that

[d]amages are capped under the HCAA, subject
to being uncapped upon a showing of “good
cause” and “unfair[ness].” § 13-64-302(1)(b),
(1)(c). Prefiling, prejudgment interest is part of
damages. § 13-64-302(2). As a matter of pure
logic, then, prefiling, prejudgment interest is
part of “damages” capped under the HCAA,
subject to being uncapped upon a showing of
good cause and unfairness . . . .

Id. at ¶ 107.4

¶ 41 Dr. Bianco urges us not to follow Scholle, arguing that the

division’s analysis is flawed. See Chavez v. Chavez, 2020 COA 70, ¶

13 (one division of the court of appeals is not bound by another).

Even if good cause and unfairness are found, only “past and future

economic damages” can exceed the cap, and Dr. Bianco contends

that prefiling, prejudgment interest is not part of “past and future

economic damages.” We agree with the Scholle division’s

4 The Colorado Supreme Court declined to grant a cross-petition for

certiorari on the question whether prefiling, prejudgment interest
may be awarded in excess of the $1 million damages cap under the
HCAA. See Scholle v. Ehrichs, (Colo. No. 22SC639, Apr. 10, 2023)
(unpublished order).

22
conclusion, subject to one clarification. Because only past and

future economic damages may exceed the $1 million limitation, we

conclude that only prefiling, prejudgment interest on past and

future economic damages may exceed that limitation.

¶ 42 The plain language of the statute supports our conclusion.

Section 13-64-302(2) provides that prefiling, prejudgment interest is

“part of the damages awarded” and “is included within each of the

limitations on liability” set forth in paragraph (1). (Emphasis

added.) There are two such limitations on liability: a hard cap of

$300,000 on “noneconomic loss or injury,” which cannot be

exceeded; and a soft cap of $1 million on “all damages,” which can

be exceeded by an award of “past and future economic damages” if

the other requirements of the statute are met. § 13-64-302(1)(b);

see also Ochoa, 212 P.3d at 970.

¶ 43 This structure makes clear that the legislature did not view

prefiling, prejudgment interest as a standalone category of

damages. Instead, it contemplated that prefiling, prejudgment

interest on a particular category of damages is part of the damages

awarded for that category. Prefiling, prejudgment interest on

noneconomic damages must be part of the noneconomic damages

23
awarded; otherwise, there would be no reason to specify that

prefiling, prejudgment interest is subject to the noneconomic

damages cap. See Dupont v. Preston, 9 P.3d 1193, 1199 (Colo. App.

2000) (reasoning under the former, lower economic damages

limitation that a “plaintiff may not recover more than $250,000 in

noneconomic loss, inclusive of prejudgment interest”), aff’d on other

grounds, 35 P.3d 433 (Colo. 2001). If prefiling, prejudgment

interest was itself a separate category of damages, it would be

subject only to the $1 million cap on “all damages,” and the

legislature’s reference to “each” limitation would be meaningless.

See People v. Iannicelli, 2019 CO 80, ¶ 47 (“We cannot . . . interpret

statutory language in such a way as to render any of the statute’s

terms meaningless.”).

¶ 44 Following the same logic, prefiling, prejudgment interest on

“past and future economic damages” is part of “past and future

economic damages” and is awardable beyond the $1 million

24
limitation, provided the other requirements of the statute are met.

§ 13-64-302(1)(b); see Scholle, ¶ 107.5

¶ 45 We are not persuaded to reach a different result by the

statute’s legislative history. Of course, because the statute is

unambiguous, we need not look to other aids of statutory

construction, such as legislative history. See Nieto, ¶ 12. We may

nonetheless do so to assess Dr. Bianco’s contentions and support

our conclusion based on the plain language of the statute. See

B.G.’s, Inc. v. Gross, 23 P.3d 691, 696 (Colo. 2001) (considering

legislative history to support plain language interpretation of a

statute); Adams v. Corr. Corp. of Am., 187 P.3d 1190, 1194 (Colo.

App. 2008) (considering legislative history to assess the defendant’s

contentions).

¶ 46 The legislature adopted section 13-64-302 in response to

Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901, 911 (Colo.

5 Prefiling, prejudgment interest on any category of damages that is

neither “past and future economic damages” nor considered
noneconomic losses for purposes of the HCAA’s noneconomic loss
limitation, see Preston v. Dupont, 35 P.3d 433, 441-42 (Colo. 2001)
(“[N]oneconomic damages for physical impairment and
disfigurement are not included in the definition of noneconomic loss
contained in the HCAA’s cap on such damages.”), remains limited
by the $1 million total damages cap without exception.

25
1993), which held that prejudgment interest was not included in

the damages subject to the $1 million limitation under the HCAA.

See Dupont, 9 P.3d at 1199. As a result, Dr. Bianco argues that

allowing prefiling, prejudgment interest to exceed $1 million is

contrary to the legislature’s intent to include such interest within

that limitation. But our interpretation does not run afoul of the

legislature’s intent to course correct after Scholz. Under our

analysis, prefiling, prejudgment interest is subject to the $1 million

damages limitation, consistent with the plain language of section

13-64-302(2). But the legislature also provided a mechanism to

allow past and future economic damages — of which prefiling,

prejudgment interest is a component — to exceed that limitation

upon a showing of good cause and a finding of unfairness. See

§ 13-64-302(1)(b); Scholle, ¶ 107. It did not provide that prefiling,

prejudgment interest may never exceed the cap. Had that been its

intent, it would have said so explicitly. See Ceja v. Lemire, 154 P.3d

1064, 1067 (Colo. 2007); People v. Denhartog, 2019 COA 23, ¶ 20.

¶ 47 We are also not convinced to reach a different result by Dr.

Bianco’s reliance on Wallbank v. Rothenberg, where the trial court

entered judgment on a jury verdict awarding over $1.3 million

26
without addressing whether good cause existed for exceeding the

damages cap and without addressing prejudgment interest. 74

P.3d 413, 420 (Colo. App. 2003). The division determined that a

remand was necessary for the court to make findings on both

issues. Id. It explained that “[u]nder the one million dollar

limitation, the Wallbanks may not recover additional amounts for

prefiling interest.” Id. at 420. Then, the division concluded that, “if

the trial court finds good cause and unfairness justifying the award

for lost future earnings, then prefiling interest also may not be

awarded for that portion of the judgment that exceeds one million

dollars, because prefiling interest is included in the total limit.” Id.

¶ 48 How the Wallbank division reached its conclusion about

prefiling, prejudgment interest is unclear to us. Based on the plain

language of section 13-64-302(1)(b) and the jury’s verdict, the trial

court could not have found good cause to exceed the damages

limitation. The division analyzed the 2002 version of the statute,

which allowed the court to exceed the cap if the amount of “lost

past earnings and the present value of lost future earnings”

combined with the amount of past and future “medical and other

health care costs” would exceed the limitation. § 13-64-302(1),

27
C.R.S. 2002; compare § 13-64-302(1), C.R.S. 2023 (allowing the

court to exceed the cap for “past and future economic damages”).

But the plaintiff was awarded only $166,060 in past and future lost

earnings and medical expenses. A prerequisite for exceeding the

cap was not met. The division also cited Shannon v. Colorado

School of Mines, 847 P.2d 210, 213 (Colo. App. 1992), which held

that prejudgment interest could not be awarded on future lost

wages under section 5-12-102, C.R.S. 1992; it did not analyze

section 13-21-101. Given these differences, we do not find

Wallbank helpful. See Chavez, ¶ 13.

¶ 49 We are similarly unpersuaded by Dr. Bianco’s citation to

Ochoa, 212 P.3d at 970. There, the plaintiff received a

noneconomic damage award that was “properly reduced to

$250,000” under the then-existing noneconomic damages limitation

in the HCAA. Id. The plaintiff acknowledged that she could not

recover prefiling, prejudgment interest on her noneconomic

damages because such interest was subject to and could not exceed

the noneconomic damages cap. Id. But she sought to recover more

post-filing, prejudgment interest by calculating such interest on the

sum of the capped amount of damages plus the prefiling,

28
prejudgment interest that she otherwise would have been entitled to

but for the noneconomic damages cap. Id. The division rejected the

plaintiff’s argument because calculating post-filing, prejudgment

interest on prefiling, prejudgment interest in excess of the

noneconomic damages limitation — prefiling, prejudgment interest

the plaintiff was not entitled to recover under the statute — would

be inconsistent with section 13-21-101. Id. at 970-71.

¶ 50 Notably, the HCAA does not provide a mechanism for the trial

court to exceed the noneconomic damages limitation upon a

showing of good cause and a finding of unfairness. See § 13-64-

302(1)(b). Nor did Ochoa involve a question of whether prefiling,

prejudgment interest was recoverable where the trial court made

appropriate findings to exceed the total damages cap. Ochoa is

likewise unhelpful. See Chavez, ¶ 13.

¶ 51 Finally, we are not swayed by Dr. Bianco’s contention that our

plain language interpretation goes against the policy purposes of

the HCAA. In relevant part, the HCAA was enacted “to assure the

continued availability of adequate health-care services . . . by

containing the significantly increasing costs of malpractice

insurance.” § 13-64-102(1), C.R.S. 2023. Dr. Bianco contends that

29
awarding prefiling, prejudgment interest beyond the total damages

limitation will significantly increase costs associated with practicing

medicine in Colorado and result in “astronomical awards of

prejudgment interest” that will ultimately result in a decline in

quality medical care.

¶ 52 We recognize that adhering to the $1 million damage limitation

furthers the legislature’s stated policy reasons for enacting the

HCAA. See id. Even so, the legislature expressly authorized courts

to award past and future economic damages that exceed that

limitation if there is a showing of good cause and a finding of

unfairness. See § 13-64-302(1)(b). The legislature apparently

recognized that the policy behind the HCAA should, under certain

circumstances, yield to a plaintiff’s right to be made whole.

Balancing competing policy interests is a task for the legislature.

See Burnett v. State Dep’t of Nat. Res., 2015 CO 19, ¶ 13. It is not

our job to second-guess those policy judgments. See Fontanari v.

Colo. Mined Land Reclamation Bd., 2023 COA 15, ¶ 28.

¶ 53 Alexander’s past and future economic damages, including his

award of pre-majority medical expenses, exceeded $1 million. The

district court found good cause to exceed the $1 million damages

30
limitation and determined that it would be “manifestly unfair” to

apply the limitation in this case. Dr. Bianco does not challenge

those findings on appeal. Prefiling, prejudgment interest is an

element of Alexander’s past and future economic damages. Thus,

the court did not err by awarding prefiling, prejudgment interest on

Alexander’s pre-majority medical expenses, even though his total

damages award exceeded $1 million.

2. The Law of the Case Does Not Alter Our Conclusion

¶ 54 Dr. Bianco contends that, even if prefiling, prejudgment

interest on economic damages may exceed the HCAA damages

limitation, the district court nonetheless erred by departing from its

previous ruling declining to award Alexander any prefiling,

prejudgment interest. Dr. Bianco contends that, under the “law of

the case,” the court was not free to modify that ruling unless it was

“no longer sound because of changed conditions, factual errors in

the previous ruling, intervening changes in the law, or manifest

injustice resulting from the original ruling.” People v. Allen, 885

P.2d 207, 212 (Colo. 1994).

¶ 55 But had the court ruled that Alexander was not entitled to

prefiling, prejudgment interest on his award of pre-majority medical

31
expenses — whether based on “law of the case” or not — that ruling

would have been erroneous, as we have explained. We are not

bound by the “law of the case” to affirm a lower court’s erroneous

ruling. See Sidman v. Sidman, 2016 COA 44, ¶ 10 (explaining that

“the law of the case from the district court [does] not bind us on

appeal”).

III. Disposition

¶ 56 The judgment is affirmed.

JUDGE TOW and JUDGE SCHOCK concur.

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