SUMMARY

July 28, 2022

2022COA87

No. 20CA2051, Scholle v. Ehrichs – Health and Welfare —

Health Care Availability Act — Limitation of Liability —

Collateral Source Evidence — Contract Exception

Among other things, a division of the court of appeals 

considers whether the trial court abused its discretion in entering a 

judgment (for $9 million) in excess of the Health-Care Availability 

Act’s $1 million damages cap. In entering judgment in excess of the 

damages cap, the trial court did not consider that the injured party 

would not have to repay any third-party providers or payers for 

approximately $6 million in past medical expenses. A majority of 

the division concludes that that this was reversible error. The 

dissent opines that the majority’s analysis is contrary to the plain 

language of the contract exception to the collateral source rule. 

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.
COLORADO COURT OF APPEALS 2022COA87

Court of Appeals No. 20CA2051

City and County of Denver District Court No. 17CV31764

Honorable Robert L. McGahey, Jr., Judge

Susan Ann Scholle, as Personal Representative for the Estate of Daniel B. 

Scholle,

Plaintiff-Appellee,

v.

Edward Ehrichs, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC, 

d/b/a Sky Ridge Medical Center, 

Defendants-Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE DAILEY

Tow, J., concurs

Berger, J., concurs in part and dissents in part

Announced July 28, 2022

Thomas Keel & Laird, LLC, Isobel S. Thomas, Jennifer L. Keel, Matthew R. 

Laird, Denver, Colorado; Connelly Law, LLC, Sean Connelly, Denver, Colorado, 

for Plaintiff-Appellee

Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado; Hall & 

Evans, L.L.C., Deanne C. McClung, Mary P. Kaluk, Denver, Colorado, for 

Defendant-Appellant Edward Ehrichs, M.D.

Wheeler Trigg O’Donnell LLP, Kevin J. Kuhn, Theresa Wardon Benz, Meghan 

Frei Berglind, Kevin C. Havelda, Denver, Colorado; Messner Reeves LLP, 

Douglas C. Wolanske, Mark B. Collier, Denver, Colorado, for DefendantAppellant Michael Rauzzino, M.D.
Sharuzi Law Group, Ltd., Jacqueline B. Sharuzi, Theodore Hosna, Denver, 

Colorado, for Defendant-Appellant HCA-HealthONE, LLC, d/b/a Sky Ridge 

Medical Center
1

¶ 1 In this medical malpractice case, the defendants — Edward 

Ehrichs, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC, 

d/b/a Sky Ridge Medical Center (the Hospital) — appeal the trial 

court’s entry of judgment in favor of Susan Ann Scholle, personal 

representative of the estate of the plaintiff, Daniel B. Scholle.1 We 

affirm in part, reverse in part, and remand with directions. 

I. Background

¶ 2 During a five-week trial, the jury heard evidence from which it 

could reasonably find the following.

¶ 3 In August 2015, Daniel B. Scholle was severely injured as a 

result of elective back surgery performed by Doctors Ehrichs and 

Rauzzino at the Hospital. 

¶ 4 Dr. Ehrichs is a general and vascular surgeon whose role in 

the surgery was to access the spine through the abdomen and, in 

his words, move “blood vessels out of the way so that the spine and 

disk space [are] exposed for the spine surgeon.” After doing so here, 

1 Daniel Scholle died on February 5, 2022. This court granted 

Susan Scholle’s motion for substitution of party on March 6, 2022. 

Unless the context indicates otherwise, we’re referring to Daniel B. 

Scholle or his legal team when we use the word “Scholle.”
2

he left the operating room, and Dr. Rauzzino — a specialist in 

spinal surgery — and his Physician’s Assistant (PA) then performed 

the spinal procedure: a discectomy and anterior lumbar interbody 

fusion (ALIF). 

¶ 5 Around 1:25 p.m., while removing a guide device — the 

Medtronic LT cage system — during the fusion part of the 

procedure, Dr. Rauzzino detected heavy bleeding from what was 

eventually determined to be an injury to Scholle’s iliac vein. Dr. 

Ehrichs was recalled to the operating room, and he and Dr. 

Rauzzino tried unsuccessfully to get control of the bleeding. 

Hospital medical personnel (the medical team), including other 

surgeons and an on-call physician, were called in to help. 

¶ 6 Scholle experienced significant blood loss2 and received a 

constant blood transfusion. Around 4:05 p.m., he went into cardiac 

arrest. He was revived. 

¶ 7 Around 4:15 p.m., the medical team doctors decided to repair 

the injury to Scholle’s vein using venous stents. But the stents 

2 Scholle lost seventeen liters of blood — about three times his total 

blood volume — throughout the procedure.
3

were too small for Scholle’s atypically large vein. Consequently, the 

Hospital’s medical team opted to obtain, from another hospital, an 

endovascular aneurysm repair (EVAR) kit containing a larger stent 

that was designed for use in performing abdominal aortic aneurysm 

(AAA) surgeries. Using two EVAR stents, the medical team was able 

to repair Scholle’s vein and hand the matter back to Dr. Ehrichs at 

6:43 p.m. to finish the procedure. Scholle was then transported to 

the intensive care unit (ICU). 

¶ 8 Dr. Ehrichs saw Scholle the next day, hoping to confirm that 

he could soon remove some laparotomy pads (i.e., sponges) he had 

used during the surgery to absorb some of the bleeding. Dr. 

Ehrichs determined, however, that Scholle was too unstable at that 

point and chose, instead, to remove the pads “two or three” days 

later. 

¶ 9 Scholle stayed in the ICU for 100 days because of continued 

complications. He suffered an infection in the surgical site, which 

progressed into sepsis and required repeated abdominal surgeries; 

injured kidneys requiring repeated dialysis; an abdominal abscess;

peritonitis; colon perforation; respiratory distress; stroke; foot drop;

and gangrene in the toes requiring an amputation. 
4

¶ 10 Scholle also spent a month in a rehabilitation center and 

continued receiving medical treatment for different problems 

experienced since surgery. 

¶ 11 Two years after the surgery, Scholle filed the present medical 

malpractice action against Drs. Ehrichs and Rauzzino and the 

Hospital. And after a twenty-two-day trial, the jury determined that 

Dr. Rauzzino was 45% responsible, Dr. Ehrichs 40% responsible, 

and the Hospital 15% responsible, for $9,292,887 in economic 

damages to Scholle.3

¶ 12 The trial court said that it would subsequently (1) adjust the 

jury’s award of damages in accordance with the Health-Care 

Availability Act (HCAA), sections 13-64-101 to -503, C.R.S. 2021;

and (2) enter judgment nunc pro tunc to the day of the jury’s verdict, 

for purposes of calculating interest. 

¶ 13 Approximately three months after the jury returned a verdict, 

the trial court, in a written order, found that “good cause” existed 

for allowing damages in excess of the $1 million HCAA cap.

3 The award encompassed $6 million for past medical expenses; 

$292,600 for past lost earnings; $2,616,876 for future medical 

expenses; and $383,411 for future lost income.
5

¶ 14 And, nearly ten months after the jury returned a verdict, and

after significant post-trial litigation, the trial court determined in a 

written order that (1) judgment would enter as of that date (as 

opposed to date the jury returned its verdict); (2) prejudgment 

interest was part of the damages award; (3) Scholle was entitled, as 

of that date, to $5,040,278.31 in prejudgment (prefiling, post-filing, 

and post-verdict) interest; and (4) final judgment would, then, enter 

in the amount of $14,997,980.28, with each of the three defendants 

liable according to the jury’s previous allocation of fault. 

¶ 15 All three defendants now appeal.

II. Issues on Appeal

¶ 16 The defendants raise numerous issues on appeal. The issues 

can, however, be categorized as follows: 

1. Did the trial court err by denying Dr. Rauzzino’s and the 

Hospital’s motions for directed verdict?

2. Did the court err by instructing the jury on physical 

impairment, the “thin skull” doctrine, and negligence per 

se?

3. Does the record support the jury’s award of economic 

damages?
6

4. Did the court properly enter judgment in excess of the $1 

million HCAA damages cap and without accounting for 

possible collateral sources of compensation? 

5. Did the court properly enter judgment without giving it 

nunc pro tunc effect to the day the jury returned its 

verdict?

¶ 17 We address each contention in turn.

III. Dr. Rauzzino’s and the Hospital’s Motions for Directed Verdict

¶ 18 Dr. Rauzzino and the Hospital contend that the trial court 

erred by determining that there was sufficient evidence of their 

negligence to send the issue of their liability to the jury.4 We 

disagree. 

4 Unlike Dr. Rauzzino and the Hospital, Dr. Ehrichs does not make 

such a challenge on appeal. Scholle had alleged that Dr. Ehrichs 

was negligent in failing to remain in the operating room during 

surgery; failing to properly and timely identify and care for Scholle’s 

condition; repeatedly using the same or similar, but ineffective, 

techniques to repair the vein injury, thereby worsening it; failing to 

timely request assistance; failing to properly assess, monitor, and 

care for Scholle; and leaving the sponges in Scholle’s body for an 

extended period of time.
7

¶ 19 We review a trial court’s decision on a motion for directed 

verdict de novo. State Farm Mut. Auto. Ins. Co. v. Goddard, 2021 

COA 15, ¶ 26.

A. General Legal Principles

¶ 20 Under C.R.C.P. 50, a party may move for a directed verdict at 

the close of the evidence offered by the opposing party. “Directed 

verdicts are not,” however, “favored.” Goddard, ¶ 25. Indeed, a 

motion for directed verdict may be granted only if the evidence, 

considered in the light most favorable to the nonmoving party, 

“compels the conclusion that reasonable persons could not disagree 

and that no evidence, or legitimate inference therefrom, has been 

presented upon which a jury’s verdict against the moving party 

should be sustained.’” Id. (quoting Burgess v. Mid-Century Ins. Co., 

841 P.2d 325, 328 (Colo. App. 1992)).

¶ 21 “Like the [trial] court, we must consider all the facts in the 

light most favorable to the nonmoving party and determine whether 

a reasonable jury could have found in favor of the nonmoving 

party.” Id. at ¶ 26. A court shouldn’t grant a motion for directed 

verdict “unless there is no evidence that could support a verdict 
8

against the moving party on the claim.” Parks v. Edward Dale 

Parrish LLC, 2019 COA 19, ¶ 10.

¶ 22 “Like other negligence actions,” to succeed on a medical

malpractice action, a “plaintiff must show a legal duty of care on the 

defendant’s part, breach of that duty, injury to the plaintiff, and 

that the defendant’s breach caused the plaintiff’s injury.” Day v. 

Johnson, 255 P.3d 1064, 1068-69 (Colo. 2011).

B. Dr. Rauzzino

¶ 23 As the supreme court noted in Day,

[A] medical malpractice claim requires more 

than proving a poor outcome; a breach of the 

applicable standard of care is required. To 

establish a breach of the duty of care in a 

medical malpractice action, the plaintiff must 

show that the defendant failed to conform to 

the standard of care ordinarily possessed and 

exercised by members of the same school of 

medicine practiced by the defendant. That 

standard of care is measured by whether a 

reasonably careful physician of the same 

school of medicine as the defendant would 

have acted in the same manner as did the 

defendant in treating and caring for the 

patient. Thus, the standard of care for medical 

malpractice is an objective one.

Id. at 1069 (footnote and citations omitted).
9

¶ 24 Dr. Rauzzino contends that the trial court erred by denying his 

motion for directed verdict because there was insufficient evidence 

to show that he breached a duty of care owed to Scholle by 

operating despite risks associated with Scholle’s diabetes, using a 

PA to assist during surgery, and using the Medtronic device.

1. Operating Despite Risks Associated

with Scholle’s Diabetes

¶ 25 Evidence was presented at trial that Scholle’s primary care 

physician (PCP) ordered routine pre-operation blood tests five days 

before surgery, including an A1C test, which measured an average 

of blood glucose levels over an approximate three-month time 

period, and a different test for current blood glucose levels. 

Scholle’s results showed that, although his current blood glucose 

level was within the normal range, he had elevated A1C levels, 

indicating poor blood sugar control over the three-month period 

before surgery.

¶ 26 Scholle presented Dr. Jeffrey Poffenbarger as a standard of 

care expert witness. He was a practicing neurosurgeon for nineteen 

years and had performed the same surgery as Scholle’s numerous 

times. 
10

¶ 27 According to Dr. Poffenbarger, Scholle’s A1C levels were 

“extremely” elevated — an indication of uncontrolled diabetes that 

could lead to “poor wound healing, poor bone growth rates after 

surgery,” and “increased risk of infection.”5 A1C levels could be 

improved with diligent efforts, Dr. Poffenbarger testified, but it takes 

some time to do so. 

¶ 28 Dr. Poffenbarger testified that “in an elective [surgery]” such as 

this, in the presence of increased risk of infection from the A1C 

levels, “taking the time to improve that risk is the responsible 

standard of care,” and that Dr. Rauzzino should have canceled 

surgery and ordered six months of conservative (i.e., physical) 

therapy, consistent with what Dr. Poffenbarger believed to be “the 

standard of care.” 

¶ 29 On appeal, Dr. Rauzzino contends that the evidence defied 

Scholle’s theory that Dr. Rauzzino improperly operated in the 

presence of “uncontrolled” diabetes based solely on his elevated 

A1C levels. In this regard, Dr. Rauzzino points to, among other 

5 Dr. Rauzzino agreed that elevated A1C levels present a “primary 

risk” of “increased” infection.
11

things, the fact that Scholle’s blood glucose levels were within the 

normal range days before surgery; that a published article had said 

“there are no standards of care for optimal A1C levels before 

surgery”;6 that Scholle’s PCP had cleared him for surgery; that Dr. 

Rauzzino had consulted the chief of medicine at the Hospital, who 

said Scholle’s A1C levels were not a contraindication to surgery; 

and that he had met with Scholle before surgery, who was informed 

of the risks associated with his elevated A1C levels and who, after 

acknowledging he had elevated levels in the past, decided to 

proceed anyway. This “overwhelming proof,” Dr. Rauzzino argues, 

“nullified” Dr. Poffenbarger’s opinion about Dr. Rauzzino’s breach of 

the applicable standard of care. 

¶ 30 Indeed, “the evidence supporting a directed verdict must do 

more than contradict conflicting evidence; it must nullify” it. 

Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681, 686 (Colo. 

1998) (citation omitted); see Gossard v. Watson, 122 Colo. 271, 273, 

221 P.2d 353, 354 (1950) (same). However, a nullification occurs 

6 Dr. Poffenbarger, who had also published on the topic, 

acknowledged that his “paper didn’t say anything different.” He 

did, however, say “[t]here is some controversy in the literature.” 
12

only if “no evidence received at trial, or inference therefrom, could 

sustain a verdict.” Tisch v. Tisch, 2019 COA 41, ¶ 34. Only then is 

a trial court “justified in directing one, not because it would have 

the authority to set aside an opposite one, but because there was 

an actual defect of proof; and, hence, as a matter of law, the party 

was not entitled to recover.” Gossard, 122 Colo. at 277, 221 P.2d at 

356. 

¶ 31 Dr. Poffenbarger’s opinion may have been the “only” one7 (as 

Dr. Rauzzino contends) saying that the standard of care in the 

presence of elevated A1C levels required a postponement of surgery. 

But his opinion was, nonetheless, presented to the jury and could 

serve as a basis for holding Dr. Rauzzino liable in connection with 

Scholle’s injuries. See Parks, ¶ 9 (stating that a court shouldn’t 

grant a motion for directed verdict “unless there is no evidence that 

could support a verdict against the moving party on the claim”). 

7 Scholle’s PCP testified that he would not have cleared Scholle for 

surgery had he known about the elevated A1C levels. However, 

because the PCP was not endorsed as an expert on the standard of 

care, he was not permitted to testify directly on that issue.
13

¶ 32 “[T]he question of whether a person was negligent — that is, 

whether [that person] breached [the] duty of care by acting 

unreasonably under the circumstances — is ordinarily a question of 

fact for the jury.” Hesse v. McClintic, 176 P.3d 759, 764 (Colo. 

2008). And it is “the jury’s sole province to determine the weight of 

the evidence and the credibility of witnesses, and to draw all 

reasonable inferences of fact therefrom.” Morales v. Golston, 141 

P.3d 901, 906 (Colo. App. 2005) (identifying several inferences that 

the jury could have made based on the evidence presented at trial). 

¶ 33 Because some evidence was presented that Dr. Rauzzino 

breached the applicable standard of care, the trial court properly 

denied Dr. Rauzzino’s motion for directed verdict with respect to 

this part of Scholle’s case.

2. Use of the Medtronic Device

¶ 34 Dr. Rauzzino also contends that Scholle did not prove that Dr. 

Rauzzino’s use of the Medtronic device breached the applicable 

standard of care. Dr. Rauzzino is not entitled to relief.

¶ 35 At trial, Scholle presented evidence, through Dr. Poffenbarger, 

that the Medtronic device, used to stabilize the spine during the 

surgery, must be seated correctly (including making sure blood 
14

vessels are properly out of the way) both to (1) avoid unintended 

injury from other tools and (2) keep unobstructed the doctor’s view 

of the area operated on. Further, Dr. Poffenbarger read a warning 

from the Medtronic’s “surgeon guide” that the device must be 

properly seated before proceeding in the surgery and agreed when 

he read that “the most common and serious adverse events [as 

relevant here] were intraoperative vascular injuries,” the exact 

injuries Scholle had experienced. Scholle also presented x-ray 

images to the jury, which, according to Dr. Poffenbarger, showed 

that the Medtronic device had not been seated properly. This was 

evident, Dr. Poffenbarger said, from the existence of certain gaps 

between the device and tissue. 

¶ 36 Dr. Rauzzino asserts that Dr. Poffenbarger’s testimony in this 

regard was fatally undermined by (1) Dr. Poffenbarger’s admission, 

during cross-examination, that while he thought the Medtronic 

“device is unsafe,” he “would not elevate that statement to a 

standard-of-care statement”; (2) Dr. Poffenbarger’s knowledge that 

other neurosurgeons had used the device and that it was used 
15

across the country; (3) Dr. Mark McLaughlin’s8 expert testimony 

that he had used the device around the same time that Dr. 

Rauzzino had; (4) Dr. McLaughlin’s testimony that “the device that 

[a doctor] is comfortable with and [is] used to is usually the one 

that’s going to get the job done as best as possible”; and, (5) Dr. 

McLaughlin’s expert opinion, based on a review of all the materials, 

that Dr. Rauzzino “did not” do anything negligently which caused 

Scholle’s injuries.

¶ 37 In denying Dr. Rauzzino’s motion for directed verdict on this 

issue, the court stated there was “plenty of evidence that even if it 

wasn’t improper to use the device, how the device was used was 

improper.” 

¶ 38 The trial court correctly distinguished between issues of 

(1) negligence in the mere use of a Medtronic device — which was 

not the theory upon which Scholle proceeded; and (2) negligently 

misusing the device — which was Scholle’s theory. Because Scholle 

presented evidence that Dr. Rauzzino had misused the device, the 

trial court properly denied the motion for directed verdict with 

8 Dr. McLaughlin, a neurosurgeon, was Dr. Rauzzino’s expert. 
16

respect to this part of Scholle’s case. See Tisch, ¶ 34 (A directed 

verdict is proper only if “no evidence received at trial, or inference 

therefrom, could sustain a verdict.”).9

C. The Hospital

¶ 39 The Hospital contends that the trial court erred by denying its 

motion for directed verdict because (1) it did not breach any duty to 

provide adequate blood products, regardless of whether a massive 

transfusion protocol (MTP) was activated; (2) it had no duty to stock 

EVAR arterial stents; and (3) any negligence on its part was not a 

proximate cause of Scholle’s injuries.

9 Dr. Rauzzino posits a third ground for challenging the court’s 

denial of the motion for directed verdict, that is, that Scholle 

presented no proof that he’d breached the applicable standard of 

care by having a PA assist him during surgery. So far as we can 

discern, however, Scholle never presented or argued that to the jury 

as a theory of liability. True, at one point an issue was raised 

whether Scholle had given “informed consent” to the participation of 

a PA during surgery. But the evidence (a signed “informed consent” 

document) showed that Scholle had done so, and the jury found 

that neither Dr. Rauzzino nor Dr. Ehrichs was liable for negligence 

based on Scholle’s lack of informed consent. Because we are 

unable to discern any other proffered theory of potential liability 

based on the involvement of the PA, we do not discuss the issue 

further. 
17

¶ 40 To succeed on an institutional negligence claim against the 

Hospital, “a plaintiff must prove that (1) the hospital had a legal 

duty to conform to a certain standard of conduct; (2) the hospital 

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

causal connection between the hospital’s alleged negligent conduct 

and the resulting injury.” Settle v. Basinger, 2013 COA 18, ¶ 58 

(analyzing a claim of negligent credentialing).

¶ 41 “Proving breach of a duty of care gets a plaintiff only halfway 

home on a negligence claim. The plaintiff must also prove that the 

breach of duty caused the claimed injury.” Garcia v. Colo. Cab Co. 

LLC, 2021 COA 129, ¶ 36. “This requirement has two parts: the 

plaintiff must prove both ‘cause in fact’ and ‘proximate’ or ‘legal’ 

cause.” Id. (quoting Rocky Mountain Planned Parenthood, Inc. v. 

Wagner, 2020 CO 51, ¶ 27). 

¶ 42 The test for cause-in-fact, commonly known as the “but for” 

test, is “whether, but for the alleged negligence, the harm would not 

have occurred,” that is, whether the negligent conduct in a “natural 

and continued sequence, unbroken by any efficient, intervening 

cause,” produced the alleged injury. Rocky Mountain Planned 

Parenthood, ¶ 28 (quoting N. Colo. Med. Ctr., Inc. v. Comm. on 
18

Anticompetitive Conduct, 914 P.2d 902, 908 (Colo. 1996)); see Groh 

v. Westin Operator, LLC, 2013 COA 39, ¶ 50 (Causation may be 

found where the negligent actor “sets in motion a course of events” 

that leads to the plaintiff’s injury.), aff’d, 2015 CO 25.

¶ 43 The test for “proximate” or “[l]egal” cause “depends largely on 

the question of the foreseeability of the harm.” Rocky Mountain 

Planned Parenthood, ¶ 30. To prove proximate cause, “the plaintiff 

must establish that the harm incurred was a ‘reasonably 

foreseeable’ consequence of the defendant’s negligence.” Deines v. 

Atlas Energy Servs., LLC, 2021 COA 24, ¶ 13. Proximate cause may 

be established, though, “even where the actor did not and could not 

foresee the precise way the injury would come about.” Id.

1. Blood Products Theory

¶ 44 The Hospital does not dispute that it had a legal duty to have 

adequate blood products on hand to respond to an emergency 

involving the excessive loss of blood during surgery. But, it says, 

Scholle’s claims against the Hospital were premised on facts 

demonstrably proven to be false. 

¶ 45 In this regard, the Hospital insists that Scholle’s experts 

assumed that an MTP had been activated, but every individual 
19

involved in the transfusion and/or was present in the operating 

room who was deposed or testified at trial said otherwise. 

¶ 46 Further, although Scholle’s experts opined that the Hospital 

had failed to supply enough blood products for the transfusion, the 

anesthesiologist in charge of Scholle’s transfusion testified that he 

always had a supply of blood products he needed when he needed 

them; that he never had to wait to receive a requested product; and 

that he was never told by anyone that the Hospital didn’t have stock 

of a blood product or that one of his requests would be delayed.

¶ 47 But Scholle points out that he presented contradictory 

evidence, or evidence of circumstances from which the jury could 

infer, that the Hospital was negligent in this regard: 

 One doctor who responded to the emergency room 

initially said that he’d been told upon arrival that 

personnel were operating under an MTP; it was only 

later, after discussing the matter with defense lawyers, 

that he said “this might not have been true.”

 One of Scholle’s experts, an anesthesiologist, testified 

that, given the circumstances, the MTP should have been 

activated.
20

 That anesthesiologist testified that (1) he performs blood 

transfusions similar to the one Scholle received and (2) in 

his experience under an MTP, blood products are 

delivered in such a way that, even though the blood is 

divided into its products (i.e., red blood cells, platelets, 

and plasma, and cryoprecipitate), it is administered to 

the patient in proper ratios as if it were whole blood.

 Scholle’s expert anesthesiologist said that the MTP is 

designed to deliver proper blood ratios to minimize the 

hypothermia, acidosis, and coagulopathy, thereby 

preventing subsequent problems such as organ 

malfunction caused by a lowered body temperature, 

heart malfunction and failure of oxygen delivery from the 

blood caused by increased levels of acid and increasing 

severity of these problems caused by the blood’s failure to 

clot (i.e., and continuing to bleed out).

 According to the expert, during Scholle’s surgery, the 

Hospital’s blood bank did not deliver the blood products 

in this ratio: it instead delivered blood in ratios different 

than those required during an MTP. 
21

 The anesthesiologist opined that incorrect ratios of blood 

were delivered to the operating room because the blood 

bank did not have all of the right blood products in 

stock.10

 That expert answered yes to counsel’s question whether 

the Hospital’s response under the MTP “fell below the 

standard of care.” 

 The same expert also testified that Scholle was losing 

blood faster than the team could administer it, which 

caused Scholle to experience hypothermia, acidosis, and 

coagulopathy (improper clotting). 

 Scholle’s nephrologist, who treated Scholle’s subsequent 

kidney injuries, explained that “whenever there is 

massive blood loss,” as in Scholle’s case, kidney cells are

“slough[ed] off,” which can lead to acute tubular necrosis.

10 Similarly, a blood bank employee at the Hospital testified that, in 

one instance, about forty-five minutes of time elapsed between 

receiving an order for plasma and having compatible plasma 

available (because it was being delivered, needed to be thawed, and 

the thawing machine was already at capacity).
22

 Although hospital rules required documenting 

“complications” and “untoward events,” a nurse shredded 

“pick” and “preference” sheets documenting the 

requested hospital equipment and what happened in the 

operating room. 

¶ 48 In our view, the above-recounted evidence was sufficient to 

support a reasonable conclusion that the Hospital breached its duty 

to have available and to timely provide appropriate blood products 

for Scholle’s emergency room surgery, and that Scholle’s injuries 

were a reasonably foreseeable consequence of that breach. Thus, 

the trial court properly denied the Hospital’s motion for directed 

verdict on this ground.

2. Stent Theory 

¶ 49 The Hospital contends that the evidence failed to establish 

that it was negligent in failing to stock, or have a policy in place to 

timely procure, the EVAR kit that was ultimately used to repair the 

injury to Scholle’s iliac vein. The expert opinion evidence offered in 

support of Scholle’s “stent theory,” it says, was “lacking in probative 

value” because it conflicted with the opinions of the Hospital’s 

experts as well as with evidence that (1) very few hospitals stocked 
23

the kits (during the emergency, hospital staff called six to eight 

different facilities, and only one of them had a kit in stock); and (2) 

the Hospital could not be expected to stock EVAR kits because it 

did not have an AAA repair program that would have used the kits. 

¶ 50 But the credibility of witnesses, and the effect and weight of 

conflicting and contradictory evidence, are all questions of fact for a 

jury to resolve, rather than questions of law to be resolved in ruling 

on a motion for directed verdict. See Park Rise Homeowners Ass’n 

v. Res. Constr. Co., 155 P.3d 427, 432 (Colo. App. 2006). 

¶ 51 Scholle presented expert opinion that a hospital of the 

Hospital’s size with a vascular surgeon and an emergency room 

treating patients with ruptured abdominal aortic aneurysms should 

have foreseen the need for, and thus stocked, the kit. 

¶ 52 Further, Scholle presented the following evidence that the 

Hospital’s failure to stock the EVAR kits was a proximate cause of 

Scholle’s injuries:

 One of the surgeons who helped to repair Scholle’s vein 

agreed when counsel asked whether a “delay of an hour 

and 45 minutes” while waiting for the EVAR kits 

“cause[d] injury” to Scholle. 
24

 Scholle’s expert in healthcare administration agreed 

when counsel asked whether the delay was “a cause of 

injury to” Scholle. 

¶ 53 In resolving this part of the Hospital’s motion for directed 

verdict, the trial court observed that the evidence was “wafer thin” 

and “very, very thin.” Nonetheless, the court still perceived that 

there was “sufficient evidence” to go to the jury. 

¶ 54 We agree with the trial court. Even though the defendants 

introduced evidence that hemostasis (i.e., cessation of bleeding) was 

achieved while the EVAR kits were en route, a reasonable inference 

could be made that, but for the kits not being immediately in stock 

and available, the length of time that Scholle was experiencing 

massive blood loss would have been less, and, consequently, he 

would not have been injured to the extent he was. 

¶ 55 Because reasonable minds could draw more than one 

inference from the evidence, Garcia, ¶ 38, once again, it was for the 

jury to resolve the conflicts in (and conflicting inferences from) the 

evidence, Walker v. Ford Motor Co., 2015 COA 124, ¶ 38, aff’d on 
25

other grounds, 2017 CO 102. Consequently, the Hospital was not 

entitled to a directed verdict on this ground either.11 

IV. Jury Instructions

¶ 56 The defendants next contend that the trial court reversibly 

erred by instructing the jury on (1) physical impairment as a 

category of damages separate and apart from noneconomic 

damages; (2) the “thin skull” doctrine; and (3) negligence per se on 

the part of the Hospital. We disagree. 

¶ 57 “Trial courts have a duty to correctly instruct juries on matters 

of law.” Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA 

82, ¶ 67 (quoting Bedor v. Johnson, 2013 CO 4, ¶ 8). Trial courts 

should not, however, “instruct on abstract principles of law 

unrelated to the issues in controversy, nor on statements of law 

11 The Hospital also argues, in a cursory manner, that reversal is 

required because Scholle’s claim for negligence per se failed to state 

a claim as a matter of law because the regulations on which the 

claim was based are not “public safety” measures. However, 

inasmuch as the Hospital did not raise that argument in its motion 

for directed verdict, we decline to address it. See Flores v. Am. 

Pharm. Servs., Inc., 994 P.2d 455, 457-58 (Colo. App. 1999) 

(“C.R.C.P. 50, in part, provides that a motion for a directed verdict

shall state the specific grounds therefor. An appellate court will not 

consider issues, arguments, or theories not previously presented in 

trial proceedings.”). 
26

which are incorrect or misleading.” People v. Alexander, 663 P.2d 

1024, 1032 (Colo. 1983) (citations omitted).

¶ 58 We review the instructions de novo to determine whether they 

correctly state the law. Vititoe, ¶ 67. If they do, we then review the 

trial court’s decision to give a particular instruction for an abuse of 

discretion. Id. “A trial court abuses its discretion only when its 

ruling is manifestly arbitrary, unreasonable, or unfair, or the 

instruction is unsupported by competent evidence in the record.” 

Id. 

A. Physical Impairment and Disfigurement as 

a Separate Category of Damages

¶ 59 The defendants assert that the trial court erred by instructing 

the jury that “permanent impairment and disfigurement”12 was a 

separate category from “non-economic damages” — which Scholle 

had disavowed any interest in recovering. We conclude that 

reversal is not warranted. 

¶ 60 Initially, the trial court

12 The trial court did not instruct the jury in terms of “permanent

impairment and disfigurement;” rather, it used the terms “physical

impairment and disfigurement.” (Emphases added.) 
27

 informed the jury, in Instruction Number 19, that it 

could consider damages for three categories of injuries: 

(1) “noneconomic injuries,” including “inconvenience, 

emotional stress, and impairment of the quality of life”; 

(2) “economic injuries,” including “loss of earnings or 

damage to his ability to earn money in the future [and]

reasonable and necessary medical, hospital, and other 

expenses”; and (3) “physical impairment or disfigurement” 

(emphases added); and 

 gave the jury a verdict form, with instructions to enter 

the total amount of injuries, damages, or losses, if any, in 

each of four categories: (1) “Medical or other health care 

expenses”; (2) “Lost earnings (and lost earning capacity)”; 

(3) “Other economic losses than those included [in the 

prior two categories]”; and (4) “Non-economic losses, 

including inconvenience, emotional stress, and 

impairment of the quality of life.”

¶ 61 “Under Colorado common law, damages for physical 

impairment and disfigurement have historically been recognized as 

a separate element of damages.” Pringle v. Valdez, 171 P.3d 624, 
28

630 (Colo. 2007). But under the HCAA, damages for physical 

impairment and disfigurement fall within the “[d]irect noneconomic 

loss or injury” category of damages. § 13-64-302(1)(II)(A), C.R.S. 

2021; see Pringle, 171 P.3d at 631 (noting that “physical 

impairment and disfigurement damages [are] among those claims 

subject to the HCAA’s noneconomic damages cap”). 

¶ 62 Damages for pain and suffering are a subset of damages for 

noneconomic injury. See § 13-21-102.5(b), C.R.S. 2021; Pringle, 

171 P.3d at 625. After Scholle’s counsel, on several occasions, 

disavowed any interest in recovering damages for pain and 

suffering, the court planned to tell the jury that noneconomic 

damages had been mistakenly included in Instruction Number 19 

and the verdict form, and that the jurors were “not to consider” 

them. Before the court could do so, however, another of Scholle’s 

attorneys argued that the jury could consider noneconomic 

damages. Consequently, the court left the verdict form and the 

instructions “the way they are.”

¶ 63 The jury awarded monetary amounts on the verdict form only 

for “Medical and other health care expenses” and “Lost earnings 
29

(and lost earning capacity)”; it awarded $0 in damages for “other 

economic losses” and “non-economic losses.” 

¶ 64 On appeal, the defendants assert that (1) given Scholle’s 

waiver of the right to recover noneconomic damages, there was no 

reason to instruct the jury on noneconomic damages, including 

permanent impairment and disfigurement; and (2) informing the 

jury that it could consider physical impairment and disfigurement 

as a separate category of damages, without, however, providing a 

place on the verdict form for this “separate” category of damages, 

injected confusion and uncertainty into the verdict. 

¶ 65 We agree that where, as here, the HCAA applies, the trial court 

should not have informed the jury that physical impairment and 

disfigurement is a separate category of damages; a court should, 

instead, reference it, if at all, under the noneconomic category of 

damages. 

¶ 66 That said, the court’s error does not warrant reversal. 

¶ 67 A “court’s erroneous provision of an instruction is reversible 

error only if the error prejudiced a party’s substantial rights. Such 

prejudice occurs where the jury might have returned a different 
30

verdict had the court not given the improper instruction.” 

McLaughlin v. BNSF Ry. Co., 2012 COA 92, ¶ 32 (citations omitted). 

¶ 68 Here, the court’s error in making “physical impairment and 

disfigurement” damages a separate category of damages, and, even 

in including a “noneconomic damages” category at all, was 

harmless, given the jury’s award of “$0” in noneconomic damages. 

¶ 69 We reject the defendants’ additional argument that the jurors 

may have awarded physical impairment and disfigurement damages 

as “medical and health expenses.” As Scholle argues, however, “the 

court told jurors [in Instruction Number 19] that any physical 

impairment damages ‘shall not include damages again for losses or 

injuries already determined under either numbered paragraph 1 or 

2 above” (which included “necessary medical, hospital, and other 

expenses”). Absent a showing to the contrary (which is not made 

here), we must presume that the jury understood and followed the 

court’s instruction. See People v. Licona-Ortega, 2022 COA 27, ¶ 

91.

B. The “Thin Skull” Doctrine

¶ 70 The defendants also contend that the trial court erroneously 

gave the jury a “thin-skull plaintiff” instruction.
31

¶ 71 Over the defendants’ objection, the trial court instructed the 

jury that 

In determining the amount of Plaintiff’s actual 

damages, you cannot reduce the amount of or 

refuse to award any such damages because of 

any physical frailties or illness, including 

diabetes, of the Plaintiff that may have made 

him more susceptible to injury, disability, or 

impairment than an average or normal 

person.13

¶ 72 On appeal, the defendants contend that this was error. We 

disagree. 

¶ 73 “Under Colorado law, it is fundamental that a tortfeasor must 

accept his or her victim as the victim is found.” Schafer v. Hoffman, 

831 P.2d 897, 900 (Colo. 1992). “Thus, a tortfeasor is fully liable 

for any damages resulting from its wrongful act even if the victim 

had a pre-existing condition that made the consequences of the 

wrongful act more severe for him than they would have been for a 

person without the condition.” McLaughlin, ¶ 35.

¶ 74 A “thin skull” or “eggshell plaintiff” instruction is appropriate 

in tort cases “when the defendant seeks to avoid or reduce liability 

13 This part of Instruction Number 20 was patterned after CJI-Civ. 

6.7 (2019).
32

by employing a technique known as ‘spotlighting,’ in which the 

defendant calls attention to the plaintiff’s pre-existing conditions or 

predisposition to injury and asserts that the plaintiff’s injuries 

would have been less severe had the plaintiff been an average 

person.” State Farm Mut. Auto Ins. Co. v. Pfeiffer, 955 P.2d 1008, 

1010 (Colo. 1998); accord Kildahl v. Tagge, 942 P.2d 1283, 1286 

(Colo. App. 1996) (“A ‘thin skull’ instruction is appropriate when a 

defendant seeks to avoid liability by asserting that the victim’s 

injuries would have been less severe had the victim been an average 

person.”). 

¶ 75 The defendants do not contest the correctness of the law 

stated in the court’s “thin skull” instruction. But, they assert, the 

instruction conveyed to the jury only abstract principles of law 

unrelated to the issues in controversy. This follows, they say, 

because they did not call attention to Scholle’s diabetes or any 

other infirmity as a means of avoiding or reducing damages. 

Instead, it was Scholle himself who introduced evidence of his 

diabetes, in connection with his claim that, given his condition, Dr. 

Ehrichs and Dr. Rauzzino should not have gone ahead with elective 

surgery that day. 
33

¶ 76 The defendants are largely — but not entirely — correct about 

what happened during trial. As Scholle asserts, at one point, a 

defense attorney asked one of Scholle’s experts on 

cross-examination, “so patients whose diabetes is not under good 

control are at greater risk of developing neuropathy; is that 

correct?” The defendants attempt to deflect the significance of the 

question by saying, essentially, that Scholle’s expert said he 

couldn’t give an answer. Still, the question was directed at 

determining whether Scholle’s diabetes increased the likelihood of 

experiencing injuries for which he sought damages. Thus, it was 

subject to being interpreted as an attempt to avoid or reduce 

damages for injuries that “an average or normal person” would not 

have experienced. 

¶ 77 Because that one question raised “thin skull” issues, the court 

did not abuse its discretion by giving the jury a “thin skull” 

instruction.

¶ 78 Moreover, even if we were to assume the trial court erred in 

giving the instruction, “[t]he court at every stage of the proceeding 

must disregard any error or defect in the proceeding which does not 

affect the substantial rights of the parties.” C.R.C.P. 61. The 
34

burden of showing reversible error is on the party asserting it. 

Tech. Comput. Servs., Inc. v. Buckley, 844 P.2d 1249, 1256 (Colo. 

App. 1992). Yet, in their opening briefs, the defendants make no 

attempt to demonstrate how they may have been prejudiced as a 

result of the instruction. All they argue is that “there was no reason 

nor legal basis to give a thin skull instruction and the giving of the 

instruction constituted reversible error.”

¶ 79 We recognize that “there can be prejudice from unsupported 

instructions because the jury is likely to try to fit facts into an 

erroneously given instruction.” Castillo v. People, 2018 CO 62, 

¶ 61. But it is not apparent to us how the defendants would have 

been prejudiced by the “thin skull” instruction. It did not 

encourage the jury to render a verdict based on sympathy or 

prejudice; it told the jurors only that they could not reduce 

damages because of Scholle’s condition — not that they were 

permitted to increase damages because of those conditions. See

O’Neal v. Bd. of Cnty. Comm’rs, No. 16-CV-01005-TMT-KLM, 2020 

WL 2526782, at *10 (D. Colo. May 18, 2020) (unpublished order).

¶ 80 In any event, “it is not this court’s function to speculate as to 

what a party’s argument might be. Nor is it our proper function to 
35

make or develop a party’s argument when that party has not 

endeavored to do so itself.” Beall Transp. Equip. Co. v. S. Pac. 

Transp., 64 P.3d 1193, 1196 n.2 (Or. Ct. App. 2003). “If [the 

defendants] wanted a weightier resolution of the issue, [they] should 

have mounted a weightier contention. Gravitas begets gravitas.” 

CSX Transp., Inc. v. Miller, 858 A.2d 1025, 1083 (Md. Ct. Spec. App. 

2004); see also Redden v. Clear Creek Skiing Corp., 2020 COA 176, 

¶ 21 (citing, with approval, this proposition from CSX Transp.).

C. Negligence Per Se

¶ 81 Finally, the Hospital contends that the court incorrectly 

provided a negligence per se instruction to the jury. We conclude 

that reversal is not required. 

¶ 82 The trial court informed the jury, in Instruction Number 16, 

that 

At the time of the occurrence in question in 

this case, the following regulations of the State 

of Colorado were in effect:

 Hospitals must implement written 

policies and procedures to provide for the 

safety and welfare of the occupants of 

their respective facilities. 

 Hospitals must maintain a complete and 

accurate medical record on every patient 
36

from the time of admission through 

discharge.

 Hospitals must provide for the 

procurement, storage, and transfusion of 

blood as needed for routine and 

emergency cases.

 Hospitals must keep records which show 

the complete receipt and disposition of 

blood. 

A violation of one or more of these ordinances 

constitutes negligence as defined in 

Instruction No. 15.

If you find such a violation, you may only 

consider it if you also find that it was a cause 

of the Plaintiffs claimed injur[ies], damages, 

and/or losses.

¶ 83 On appeal, the Hospital contends that the trial court erred by

giving the jury that instruction because the regulations the court 

used in crafting that instruction cannot, as a matter of law, serve as 

the basis for a negligence per se claim. That’s because, it says, the 

regulations at issue were adopted primarily for “licensure” reasons 

and not, as required, for “the public’s safety.” See Smith v. Surgery 

Center at Lone Tree, LLC, 2020 COA 145M, ¶ 39.

¶ 84 But that was not the argument that the Hospital made in the 

trial court. In the trial court, the Hospital objected on the following 

grounds to any consideration of a negligence per se claim: it wasn’t 
37

pleaded, it didn’t fit the facts of the case, the regulations didn’t 

provide for a standard of care in a professional medical malpractice 

case, and, finally, that “a three-pronged test . . . needs to be 

articulated before negligence per se can be established,” and that 

“was[n’t] done.” At no time did the Hospital argue that the 

regulations were adopted primarily for “licensure,” rather than 

“public safety,” reasons. 

¶ 85 “Because [the Hospital] did not object on this ground at trial, 

we decline to address this new argument.” Peiffer, 955 P.2d at

1010 n.3; see Brown v. Am. Standard Ins. Co., 2019 COA 11, ¶ 21 

(“[I]ssues not raised in or decided by the trial court generally will 

not be addressed for the first time on appeal.”); O’Connell v. Biomet, 

Inc., 250 P.3d 1278, 1282 (Colo. App. 2010) (“[W]hen a party fails to 

assert an argument in the trial court but raises it for the first time 

on appeal, the assertion is deemed waived.”); see also C.R.C.P. 51 

(stating that the parties must object to jury instructions prior to 

submission of the instructions to the jury, and that “[o]nly the 
38

grounds so specified shall be considered on . . . appeal or 

certiorari”).14

¶ 86 We also reject the Hospital’s request that we review its 

unpreserved argument under a plain error standard. Appellate 

courts apply plain error only in the “‘rare’ civil case, involving 

‘unusual or special’ circumstances — and even then, only ‘when 

necessary to avert unequivocal and manifest injustice.’” Wycoff v. 

Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1269

(Colo. App. 2010) (quoting Harris Grp., Inc. v. Robinson, 209 P.3d 

1188, 1195 (Colo. App. 2009)).

14 The Hospital argues that we should nonetheless consider the 

issue preserved for review, consistent with Silva v. Wilcox, 223 P.3d 

127, 134-35 (Colo. App. 2009), where a division of this court found 

a “general objection” sufficient to preserve a challenge to a 

negligence per se instruction based on “the context of the parties’

continuing dispute and the trial court’s consideration of both the 

statutes and the ordinance.” We read Silva to mean that, although 

the objection in the trial court was not made with the precision with 

which it was presented on appeal, the gist of the objection 

presented on appeal would nonetheless have been apparent to the 

court. That is not, in our view, the situation here.
39

¶ 87 This is not, in our view, one of those “rare” cases — involving 

unusual circumstances and necessary to avert unequivocal 

injustice — calling for plain error review.

V. The Jury’s Award of Damages 

¶ 88 The defendants contend that the jury’s award of economic 

damages is, in several respects, unsupported by the evidence.15 

More specifically, they argue that the trial court erred in refusing to 

strike (1) $1.4 million of Scholle’s claimed past medical expenses, 

for lack of evidence as to their reasonableness, necessity, and 

causation; and (2) $456,848 in past medical expenses, as lacking 

any evidentiary support. We decline to address the merits of the 

$1.4 million issue because the defendants have failed to adequately 

brief that issue. But, as for the $456,848 in past medical expenses, 

15 Each of the defendants filed its or his own opening brief. In a 

pattern repeated throughout the briefs, however, one of the 

defendants (in this instance, Dr. Ehrichs) argued a point, and the 

other two defendants summarily joined in that argument. This 

manner of proceeding is highly questionable under C.A.R. 28(h)

(stating that “any party may adopt by reference any part of 

another’s brief, but a party may not both file a separate brief and 

incorporate by reference the brief of another party”).
40

we conclude that Scholle did not present sufficient evidence to 

sustain that part of the award. 

A. The $1.4 Million Figure

¶ 89 The defendants assert that the trial court should have granted 

their motion for directed verdict with respect to $1,483,495 in past 

medical expenses because Scholle did not present any proof that 

those expenses were reasonable or causally related to any 

negligence. 

¶ 90 But as Scholle points out, the defendants did not identify in 

their opening briefs which $1,483,495 of Scholle’s claimed $5.5-to-

$6 million in medical expenses were contested. It is not enough to 

identify the contested expenses for the first time in a reply brief. 

See In re Marriage of Dean, 2017 COA 51, ¶ 31 (“We do not consider 

the arguments mother makes for the first time in her reply brief or 

those that seek to expand upon the contentions she raised in her 

opening brief.”). Nor is it enough simply to cite to portions of the 

record (i.e., transcripts, motions) where the arguments were

identified for the trial court. See Gravina Siding & Windows Co. v. 

Frederiksen, 2022 COA 50, ¶ 70 n.13 (“This attempt to incorporate 

by reference arguments made in the trial court improperly ‘attempts 
41

to shift — from the litigants to the appellate court — the task of 

locating and synthesizing the relevant facts and arguments’ and

‘makes a mockery’ of the rules that govern the length of briefs.” 

(quoting Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo. App. 

2006))).

¶ 91 The parties are “responsible for advancing the facts and 

arguments entitling them to relief.” Compos v. People, 2021 CO 19, 

¶ 35 (quoting Greenlaw v. United States, 554 U.S. 237, 243-44 

(2008)). Because the defendants’ argument has not been properly 

presented to us on appeal, we decline to address it. See Pastrana v. 

Hudock, 140 P.3d 188, 189 (Colo. App. 2006) (“[W]e will not search 

the record for evidence to support allegations of error.”); Brighton 

School Dist. 27J v. Transamercia Premier Ins. Co., 923 P.2d 328, 335 

(Colo. App. 1996) (“[I]t is not the duty of the reviewing court to 

search the record for evidence to support bald assertions.”).

B. The $456,848 Figure

¶ 92 This issue turns on exactly which summary exhibit was 

admitted into evidence. The defendants point to “Exhibit 486,” 

which they say was admitted (through Scholle’s testimony) and 

which shows a total of only $5,543,152 in past medical expenses. 
42

But Scholle, on appeal, cites to a different version of Exhibit 486 

(the one labeled “Updated 11/05/2019”) that was supposedly 

admitted and shows a total of $6,014,668.31 in past medical 

expenses. 

¶ 93 Determining who is correct here is not without difficulty. The 

record is far from clear as to what version of Exhibit 486 was the 

final one admitted at trial. 

¶ 94 We can say what the record is clear about, though, and draw 

some logical conclusions from it. 

¶ 95 The record reflects that both Scholle and the defendants 

uploaded “Exhibit – 486,” with the label “(Updated 11/05/2019),” 

into the supplemental record on appeal; the uploaded Exhibit – 486 

shows a total of $6,014,668.31 in past medical expenses. 

¶ 96 But when Scholle testified, he said that Exhibit 486 “did not 

include any bills” for “diabetes” or “hypertension or cholesterol,” 

and that he’d taken “out from the [Hospital] bills the cost of the 

original August 26, 2015, surgery” and a “back revision” occurring 

on November 11, 2015. Counsel then attempted to ask, “And those 

— taking out those bills, they totaled $477,000—” as a specific total 

dollar amount of bills that were excluded, when a defense attorney 
43

objected on foundation and relevance grounds.16 The court decided 

that Scholle could testify as to what the bills were for but was “not 

going to let [Scholle’s counsel] lead him through what the amounts 

are[.]” 

¶ 97 Simple math shows that $6,014,668.31 minus the 

approximate figure of $477,000 that counsel was talking about 

equals $5,537,668.30 — a figure very close to the $5,543,152 figure 

appearing on the defendants’ version of Exhibit 486. 

¶ 98 In closing argument, Scholle’s counsel pointed to Exhibit 486, 

saying (1) Exhibit 486 was “the past medical [expenses] alone since 

August 26, 2015[, which were] 5.5 million dollars”; and, (2) a few 

pages of transcript later, that the total amount of expenses from the 

expert report “was $5,543,151.74. . . . And you [i.e., the jury] can 

take that forward as you see fit.” Further, in a responsive brief 

post-trial, the defendants stated that during closing argument, 

Scholle’s counsel handwrote this number “on the exemplar jury 

form.”

16 We acknowledge that, since counsel was cut off mid-sentence, the 

“477,000” number is approximate. 
44

¶ 99 On appeal, Scholle asserts that his counsel simply referenced 

the wrong exhibit in closing argument. But the combination of 

Scholle’s testimony, simple math, and Scholle’s closing argument 

lead us to conclude that the “final” Exhibit 486 admitted into 

evidence was the one to which the defendants direct this division’s 

attention. 

¶ 100 Consequently, because the evidence would support only an 

award of $5,543,151.74, the jury’s award of $6 million must be 

reduced (by $456,948) to that amount.17

VI. Trial Court’s Entry of Judgment

¶ 101 The defendants also contend the trial court erred by (1) 

including prefiling interest in excess of the HCAA’s damages cap; (2) 

17 We reject, however, the defendants’ separate assertion that 

Scholle should not have been awarded the full amount of future

damages because, according to them, (1) Scholle’s “life care plan” 

included $1,180,400 in identified (but unnecessary) items; and (2) 

$383,411 in duplicative, future lost earnings. But, as Scholle 

points out, the defendants’ arguments overlook (1) the economic 

catastrophe Scholle and his family suffered; (2) evidence that 

Scholle’s health needs would increase over time; and (3) the trial 

court’s recognition that the jury awarded Scholle distinct amounts 

for “future medical and other health care expenses” and “future lost 

earnings and lost earning capacity. See Pressey v. Children’s Hosp., 

2017 COA 28, ¶ 47, overruled on other grounds by Rudnicki v. 

Bianco, 2021 CO 80.
45

concluding that good cause existed to exceed the HCAA’s $1 million 

damages cap, and without properly applying the HCAA’s collateral 

source provision; and (3) not entering judgment nunc pro tunc. We 

address each contention in turn.

A. The HCAA’s Damages Cap

¶ 102 The General Assembly enacted the HCAA to “assure the 

continued availability of adequate health care services to the people 

of this state by containing the significantly increasing costs of 

malpractice insurance . . . .” § 13-64-102(1), C.R.S. 2021. In 

furtherance of that purpose, the HCAA presumptively caps the total 

damages a plaintiff can recover on a medical malpractice claim to 

$1 million ($300,000 of which can be noneconomic damages). § 13-

64-302(1)(b), (1)(c).

B. Prefiling Interest 

¶ 103 The defendants contend that the trial court erred in including 

$1,429,832 in prefiling, prejudgment interest from the date of 

Scholle’s surgery (August 26, 2015) to the date he filed his 

complaint (May 11, 2017) in a judgment in excess of the HCAA’s 

damages cap.
46

¶ 104 Section 13-21-101(1), C.R.S. 2021, governs interest on 

damages in all personal injury actions: a plaintiff may claim interest 

on damages from the date the action accrues until the date the suit 

is filed (prefiling interest) and from the date the suit is filed to the 

date judgment is satisfied (post-filing interest). 

¶ 105 Section 13-64-302(2), however, provides that 

prejudgment interest awarded pursuant to 

section 13-21-101 that accrues during the 

time period beginning on the date the action 

accrued and ending on the date of filing of the 

civil action is deemed to be part of the damages 

awarded in the action for the purposes of this 

section and is included within each of the 

limitations on liability that are established 

pursuant to subsection (1) of this section. 

(Emphases added.)

¶ 106 According to the defendants, under this statute, “Scholle may 

not recover prefiling interest in excess of the HCAA’s damage caps 

under any circumstances.” We do not agree. 

¶ 107 Damages 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, 
47

subject to being uncapped upon a showing of good cause and 

unfairness — unless there’s another statute saying otherwise. 

There is no statute — nor case law18 — saying otherwise. 

¶ 108 Consequently, the trial court did not err by considering the 

prefiling, prejudgment interest as part of the damages award, 

subject to being uncapped upon a showing of “good cause” and 

“unfairness.”

C. Exceeding the HCAA’s Damages Cap and 

Collateral Source Considerations

¶ 109 Section 13-64-302(1)(b) provides that 

if, upon good cause shown, the court 

determines that the present value of past and 

future economic damages would exceed [the $1 

million] 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. 

(Emphases added.)

18 As Scholle points out, the cases on which the defendants rely —

Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009), and Wallbank v. 

Rothenberg, 74 P.3d 413 (Colo. App 2003) — involved appeals from 

damage awards that the trial court had capped after finding no 

good cause to exceed the cap.
48

¶ 110 In considering this provision, a division of our court, in 

Wallbank v. Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006), 

equated (1) “good cause” with a “substantial or legal justification, as 

opposed to an assumed or imaginary pretense”; and (2) “unfair” 

with “marked by injustice, partiality, or deception.” (Citations 

omitted.) And because the statute doesn’t “specify factors that a 

trial court must consider when determining whether a movant has 

shown good cause or unfairness,” the division held that “a court 

may exercise its discretion to consider factors it deems relevant 

when determining whether the movant qualifies for . . . [an] 

exception to the cap.” Id. at 180-81.

¶ 111 Scholle had the burden of establishing good cause and 

unfairness under the statute. Id. at 180. According to the 

defendants, Scholle provided no justification for an award in excess 

of the damages cap beyond saying his damages were supported by 

the evidence. 

¶ 112 That’s not what the record reflects. In a written order, the trial 

court found that, under the totality of the circumstances, good 

cause existed for endorsing the jury’s award in excess of the 

statutory cap because (1) the amount of the award was supported 
49

by “credible, unrefuted evidence at trial”; (2) it would be 

“fundamentally unfair” to limit the amount of damages due to the 

“calamity” that occurred; (3) the medical costs imposed “a 

significant financial burden” on Scholle and his family, as he was 

the primary earner and had two minor children at home; (4) though 

Scholle was fifty-seven years old, he sustained permanent injuries 

which would prevent him from ever returning to a “career that he 

enjoyed deeply”; (5) medical costs would “escalate” and would “only 

increase over time” through the end of Scholle’s life; and (6) 

considering that the bulk of these costs were “already-incurred

medical costs,” Scholle and his family lacked the means to earn 

sufficient income to pay off those costs.

¶ 113 Here, there is no question but that the first five factors relied 

on by the trial court were proper, supported by the record, and 

sufficient to support the entry of judgment in excess of $1 million. 

¶ 114 But what about the sixth factor of Scholle having to repay 

“already-incurred” costs? Was it properly considered, and, if not, 

does it call into question the propriety of the judgment entered by 

the court?
50

¶ 115 A court abuses its discretion when it gives significant weight to 

an improper or irrelevant factor, see, e.g., City of Duluth v. Fond du 

Lac Band of Lake Superior Chippewa, 785 F.3d 1207, 1210-11 (8th 

Cir. 2015), or when it relies on factual assertions not supported by 

the record, Medina v. Conseco Annuity Assurance Co., 121 P.3d 345, 

347 (Colo. App. 2005).

¶ 116 The HCAA “eliminates, to the extent possible, the likelihood 

that health care providers will pay out large sums of money for 

losses that will never actually be sustained by the tort victim.” Hill 

v. United States, 81 F.3d 118, 120 (10th Cir. 1996). It does so, in 

part at least, by requiring that, “[b]efore entering final judgment, the 

court . . . determine the amount, if any due [to a] third party payer 

or provider and enter . . . judgment in accordance with such 

finding.” § 13-64-402(3), C.R.S. 2021. 

¶ 117 Here, although Scholle served notice on third-party payers or 

providers, as required by the HCAA under section 13-64-402(1), 

none of them filed a “written notice of [a] subrogated claim,” as 

required by section 13-64-402(2). The failure to file a notice of a 

subrogation claim “shall constitute a waiver of such right of 

subrogation as to such action” under section 13-64-402(2). 
51

¶ 118 Courts may (and regularly do), however, address the impact of 

waived claims on the rights of others. The defendants assert that 

because third-party payers’ or providers’ waiver of subrogation 

claims bars those parties’ ability to recover anything else from 

Scholle, the court should have taken into account that Scholle owed 

them nothing further. 

¶ 119 Scholle asserts otherwise, relying on a holding from a division 

of this court that the contract exception to the collateral source 

statute applies to post-verdict proceedings seeking the reduction of 

damages in medical malpractice actions. See Pressey v. Children’s 

Hosp., 2017 COA 28, ¶¶ 17-22, overruled on other grounds by 

Rudnicki v. Bianco, 2021 CO 80. 

¶ 120 A collateral source is “a person or company, wholly 

independent of an alleged tortfeasor, that compensates an injured 

party for that person’s injury.” 6 David R. DeMuro, Colorado 

Practice Series: Civil Trial Practice § 12.4, Westlaw (2d ed. database 

updated Aug. 2021) (quoting Smith v. Kinningham, 2013 COA 103, 

¶ 13). A collateral source is typically an entity such as an 

insurance company or employer. Id.
52

¶ 121 To prohibit, in some circumstances, a plaintiff’s double 

recovery, the General Assembly legislatively enacted a “collateral 

source” rule, which allows the court, after the jury has returned its 

verdict stating the amount of damages to be awarded, to reduce the 

amount of the verdict by the amount the plaintiff was indemnified 

by a third party. § 13-21-111.6, C.R.S. 2021. The statute, 

however, has an important exception (the contract exception): 

the verdict shall not be reduced by the amount 

by which such person . . . has been or will be 

wholly or partially indemnified or compensated 

by a benefit paid as a result of a contract 

entered into and paid for by or on behalf of 

such person.

Id.

¶ 122 The contract exception to the legislature’s collateral source 

rule “prevent[s] a windfall to a tortfeasor when a plaintiff receive[s] 

benefits arising out of the plaintiff’s contract.” Volunteers of Am.

Colo. Branch v. Gardenswartz, 242 P.3d 1080, 1085 (Colo. 2010). 

But it 

does not necessarily result in a plaintiff 

receiving a double recovery because the 

plaintiff must often subrogate the party with 

whom they contracted. In a typical 

subrogation framework, an insurer pays for 

the injured plaintiff’s medical costs up front, 
53

the plaintiff collects the cost of the treatment 

from the tortfeasor under the contract 

exception in section 13-21-111.6, and the 

plaintiff then reimburses the insurer for the 

cost of the treatment. So although the 

contract exception prevents the trial court 

from deducting from the plaintiff’s damages 

the amount paid by a party with whom the 

plaintiff has contracted, the plaintiff’s 

subrogation obligation will generally prevent 

double recovery.

Ronquillo v. EcoClean Home Servs., Inc., 2021 CO 82, ¶ 17 (citations 

omitted).

¶ 123 In light of the contract exception, we agree with Scholle, to the 

extent that he argues that a court cannot, as a matter of law, 

reduce damages in excess of the damages cap because a plaintiff 

owes nothing further with respect to past expenses or bills.

¶ 124 But that is not the same as saying that whether a plaintiff 

owes money to third-party providers or payers isn’t a relevant 

consideration in deciding to enter judgment in excess of the HCAA’s 

$1 million damages cap. Otherwise, the language of section 13-64-

402(3) — requiring the entry of “judgment in accordance with [a] 

finding” as to “the amount, if any due [to a] third party payer or 

provider” — would have little, if any, purpose. Dep’t of Revenue v. 

Agilent Techs., Inc., 2019 CO 41, ¶ 32 (avoiding a statutory 
54

construction that would render a section meaningless); People v. 

Gulyas, 2022 COA 34, ¶ 30 (“We must avoid constructions that 

would render any words or phrases superfluous.”); Keysight Techs., 

Inc. v. Indus. Claim Appeals Off., 2020 COA 29, ¶ 12 (“A ‘cardinal 

principle of statutory construction’ is that no clause, sentence, or 

word is ‘superfluous, void, or insignificant.” (quoting Falcon 

Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1, 2018 

COA 92, ¶ 31)). 

¶ 125 The trial court did not take subrogation interests (or the lack 

thereof) into consideration in entering judgment because, it said, 

none were asserted. But, the defendants insist, “the assumption 

that [Scholle] was responsible for repaying past medical expenses 

permeated the trial court’s order allowing such a high damage 

award.” To this end, the trial court found (1) “[T]hese [past medical] 

costs imposed a significant financial burden on [Scholle’s] family, 

for whom he has been the primary income earner. . . . [Scholle] and 

his family lack the means to earn sufficient income to repay his 

already-incurred medical costs”; and (2) not allowing a recovery in 

excess of the cap would “prevent [him] from recovering funds to 

repay medical care he has already received.” 
55

¶ 126 Contrary to one of the trial court’s findings, however, Scholle 

did not produce any evidence that he owed any money to 

third-party payers or providers. The trial court, then, should not 

have taken this “fact” into consideration, much less given it 

significance in entering judgment, and the court abused its 

discretion in considering it. See City of Duluth, 785 F.3d at 1210-

11; Medina, 121 P.3d at 347. 

¶ 127 The question at this point is whether the abuse of the court’s 

discretion in this regard was prejudicial or harmless. See C.R.C.P. 

61 (“[N]o error or defect in any ruling or order or in anything done 

or omitted by the court . . . is ground for granting a new trial or for 

setting aside a verdict or for vacating, modifying or otherwise 

disturbing a judgment or order, unless refusal to take such action 

appears to the court inconsistent with substantial justice. The 

court at every stage of the proceeding must disregard any error or 

defect in the proceeding which does not affect the substantial rights 

of the parties.”). This, in turn, depends on whether the court’s error 

substantially influenced the outcome of the case. See Bernache v. 

Brown, 2020 COA 106, ¶ 26.
56

¶ 128 If the record clearly shows that the trial court would have 

reached the same result even without considering Scholle’s liability 

for past expenses, then the error was harmless. Cf. People v. 

Loveall, 231 P.3d 408, 416 (Colo. 2010) (evaluating the 

harmlessness of improperly considering a particular ground as a 

basis for revoking probation). 

¶ 129 As we read the trial court’s order, the court’s improper 

consideration of Scholle’s purported repayment obligations was a 

significant factor in the decision to allow a judgment in excess of 

the HCAA’s damages cap. We thus can say “with fair assurance 

that the error substantially influenced the outcome of the case.” 

See Johnson v. Schonlaw, 2018 CO 73, ¶ 11. Thus, the court’s 

erroneous consideration of this factor cannot be considered 

harmless. 

¶ 130 The case must be remanded, then, for a re-assessment of 

whether, under the circumstances, properly considered, there is 

good cause to believe that the application of the HCAA’s damages 

cap would be unfair. 
57

D. Nunc Pro Tunc

¶ 131 The defendants contend that the trial court erred by failing to 

enter judgment, as it said it would, nunc pro tunc to November 21, 

2019, the date the jury returned its verdict. Instead, it entered 

judgment nearly ten months later, on September 16, 2020. 

¶ 132 The delay in entering judgment, the defendants say, resulted 

in an additional “ten months of prejudgment interest, increasing the 

final judgment by nearly $1 million.” 

¶ 133 “Upon a general or special verdict of a jury, . . . the court shall 

promptly prepare, date, and sign a written judgment and the clerk 

shall enter it on the register of actions.” C.R.C.P. 58(a) (emphasis 

added). 

¶ 134 A ten-month delay in entering judgment could hardly be called 

“prompt” action. Cf. Keenan ex rel. Hickman v. Gregg, 192 P.3d 

485, 488 (Colo. App. 2008) (“[P]rompt” means “performed readily or 

immediately; given without delay or hesitation.”) (citation omitted). 

“The doctrine of nunc pro tunc permits a court to enter an order, 

such as an order of final judgment, with an effective date earlier 

than the actual date of entry. An entry of judgment nunc pro tunc

to a certain date is appropriate when the cause was ripe for 
58

judgment on that earlier date. The doctrine of nunc pro tunc is often 

used to ameliorate harm done to a party by court delays or clerical 

errors.” Guarantee Tr. Life Ins. Co. v. Est. of Casper, 2018 CO 43, 

¶ 27; see, e.g., Zuker v. Clerk-Magistrate, 673 N.E.2d 548, 552

(Mass. 1996) (A judgment nunc pro tunc can be entered “to prevent 

a failure of justice resulting, directly or indirectly from delay in 

court proceedings subsequent to a time when a judgment, order or 

decree ought to and would have been entered, save that the cause 

was pending under advisement.”) (citation omitted). 

¶ 135 When a judgment is entered nunc pro tunc, postjudgment 

interest begins to run on the judgment as of the earlier date. See 

Stone v. Currigan, 138 Colo. 442, 449, 334 P.2d 740, 743 (1959). 

¶ 136 “Application for . . . a judgment [nunc pro tunc] is addressed to 

the sound discretion of the court.” Perdew v. Perdew, 99 Colo. 544, 

547, 64 P.2d 602, 604 (1936). A court abuses its discretion if its 

decision is manifestly arbitrary, unreasonable, or unfair, or if it 

misapplies the law. AA Wholesale Storage, LLC v. Swinyard, 2021 

COA 46, ¶ 32.

¶ 137 Citing Estate of Casper, ¶¶ 26-28, Scholle rather conclusorily 

asserts that the trial court “could not legally have entered judgment 
59

on verdict day because the verdict did not resolve the damages 

available under the HCAA.” He doesn’t tell us why, though. 

Presumably, it’s because the court had yet to determine (1) the 

amount of applicable prefiling, prejudgment interest, which, as 

noted earlier, would be part of the damages recoverable under the 

HCAA; or (2) whether “good cause” existed to allow the jury’s award 

of damages in excess of the HCAA’s damages cap. The first of 

these, however, involved only a matter of mathematical calculation, 

and the second (unlike in Estate of Casper) involved no potential for 

an increase in allowable damages. Neither of these circumstances 

would bar the entry of a nunc pro tunc judgment. 

¶ 138 It is true, as Scholle points out, that much of the ten-month 

period before the court entered judgment was taken up with 

post-trial litigation over fees and costs, and collateral source and 

subrogation issues. But ultimately, none of that affected the base 

amount of damages awarded by the jury and, in turn, allowed by 

the court. 
60

¶ 139 Applying a 9% prejudgment interest rate on a base figure of 

$13,345,931.31,19 the court (in its written, final judgment) 

determined that, for the 300 days between the date of the verdict 

and the date the judgment was entered, Scholle was entitled to 

“postverdict,” prejudgment interest of $987,234. 

¶ 140 However, had the court entered its judgment nunc pro tunc to 

the day of the verdict (as the court, at one point, said it would do), 

the “postverdict” interest on that same base amount for those 300 

days would be considered “postjudgment” interest. Postjudgment 

interest on money judgments that are appealed is, under section 

13-21-101(3), “two percentage points above the discount rate,” 

19 As explained in the trial court’s written final judgment, this 

“base” figure comprises

(1) The jury’s $9,292,887 award of damages; 

(2) “pre filing interest” of a simple 9% interest rate on the jury 

award, running from the date of the surgery to the date that 

Scholle filed his complaint; and

(3) “post filing, pre judgment” interest, compounded annually at a 

9% rate of the sum of (a) the original jury award plus (b) the 

pre filing interest, running from the date Scholle filed his 

complaint to the date the court entered final judgment (on 

September 16, 2020).
61

which is the current market interest rate paid to the federal reserve 

bank of Kansas City, and “rounded to the nearest full percent.” 

¶ 141 According to the defendants in their reply briefs, the 

applicable postjudgment interest rate is 2%. Using that rate on the 

same base figure for the 300 days at issue, the postjudgment 

interest figure would have been $219,384.

¶ 142 The difference between the figures representing post-verdict, 

prejudgment interest and post-verdict, postjudgment interest is 

$767,850. 

¶ 143 The court’s explanation for not ultimately making the 

judgment nunc pro tunc to the date of the verdict was that the court 

wanted to enter only one final judgment. But the court could have 

done so, effective as of the date of the verdict. And by doing so, the 

court could have alleviated the harm done to the defendants as a 

result of using a pre-, instead of a post-, judgment rate of interest. 

¶ 144 The court’s failure to enter judgment nunc pro tunc, without a 

good reason, was, in our view, manifestly unfair and thus an abuse 

of discretion. 
62

¶ 145 Consequently, the damages part of the judgment must be set 

aside and re-calculated as if judgment was entered nunc pro tunc to 

the date of the jury’s verdict.

VII. Disposition

¶ 146 The judgment is affirmed in part and reversed in part, and the 

matter is remanded to the trial court with directions to, consistent 

with the views expressed in this opinion, (1) reduce the amount of 

the jury’s award for past medical expenses to $5,543,152; (2) 

re-calculate the amount of prefiling, prejudgment interest and 

include it, with the jury’s award, as damages; (3) reconsider 

whether Scholle has shown good cause to conclude that application 

of the HCAA’s $1 million damages cap would be unfair; and (4) 

enter judgment, nunc pro tunc, as of the date of the jury’s verdict 

(November 21, 2019). 

JUDGE TOW concurs.

JUDGE BERGER concurs in part and dissents in part.
63

JUDGE BERGER, concurring in part and dissenting in part. 

¶ 147 I agree with nearly all the majority’s analysis in this difficult 

case. But, for two independent reasons, I respectfully disagree that 

a remand is necessary for a re-assessment of whether to exceed the

$1 million cap under the Health-Care Availability Act (HCAA). See

supra Part VI.C. Instead, I believe the trial court’s decision was 

within its broad discretion, and, in any event, any error was 

harmless. I would therefore affirm the judgment subject to the 

specific reductions addressed in the majority opinion. 

I. The Majority’s Analysis

¶ 148 As the majority recites, the trial court relied on six express

factors to exceed the cap. Supra, ¶ 112. The majority agrees that

the trial court properly considered five of those factors and that 

those factors support the trial court’s decision to exceed the cap. 

Supra, ¶ 113. Nevertheless, the majority reverses the judgment. 

The majority says that consideration of one of those factors 

constituted an abuse of discretion. According to the majority, that 

one factor requires that we remand this complex case to a new 
64

judge (who has no background with the case) for reconsideration of 

this quintessentially discretionary decision.1 

¶ 149 The single factor with which the majority takes issue is factor 

six: the trial court’s consideration of the supposed fact that the bulk 

of these costs were “already-incurred medical costs” and that 

“Scholle and his family lacked the means to earn sufficient income 

to pay off those costs.” Supra, ¶ 112. The majority takes the trial 

court to task on factor six because it says that Mr. Scholle 

presented no evidence that he had owed any money to insurers or 

other third-party payers. Supra, ¶ 126. The majority errs for two 

reasons.

II. The Majority’s Analysis is Contrary to the Plain Language of 

the Contract Exception to the Collateral Source Rule

¶ 150 First, the trial court did not abuse its discretion by considering 

the sixth factor. The contract exception to the collateral source 

statute required the court to disregard the fact (if it is a fact) that 

Mr. Scholle or his estate had no out-of-pocket obligations to pay for 

his past or future medical care. 

1 The trial judge who allowed the judgment to exceed the cap has 

retired.
65

¶ 151 In tort actions, a court must generally reduce the damages by 

the amount the plaintiff was compensated by any other person, 

except that

the verdict shall not be reduced by the amount 

by which such person, his estate, or his 

personal representative has been or will be 

wholly or partially indemnified or compensated 

by a benefit paid as a result of a contract 

entered into and paid for by or on behalf of 

such person.

§ 13-21-111.6, C.R.S. 2021. 

¶ 152 The statute is broad and unambiguous: courts cannot reduce 

a verdict by any amount paid as the result of a contract. It 

contains no exception for when a third party fails to file a 

subrogation notice under the HCAA with the trial court. The trial 

court therefore properly considered Mr. Scholle’s medical expenses 

without regard to insurance when it exercised its discretionary 

authority to exceed the cap. 

¶ 153 The majority claims to distinguish between a prohibited 

reduction of the judgment based on collateral sources and 

consideration of the amounts required to be paid by Mr. Scholle or 

his estate for medical care. The majority agrees that “a court 

cannot, as a matter of law, reduce damages in excess of the 
66

damages cap because a plaintiff owes nothing further with respect 

to past expenses or bills.” Supra, ¶ 123. But, the majority says, 

“that is not the same as saying that whether a plaintiff owes money 

to third-party providers or payers isn’t a relevant consideration in 

deciding” whether to exceed the cap. Supra, ¶ 124. 

¶ 154 In my view, that is a distinction without a difference. The 

result is precisely the same. The majority reverses a principal 

judgment of almost $10 million based on monies allegedly paid by 

Mr. Scholle’s insurers and other third-party payers. Regardless of 

how the majority attempts to sanitize it, that reduction violates the 

collateral source statute. 

¶ 155 Public policy goals of avoiding double recovery may favor the 

majority. I acknowledge that for years well-meaning people have 

disputed the public policy grounds supporting both the common 

law and statutory collateral source rule. See Wal-Mart Stores, Inc. v. 

Crossgrove, 2012 CO 31, ¶¶ 9-18 (explaining the evolution and 

policy of the common law and statutory collateral source rule). 

¶ 156 But the General Assembly has spoken, and our job is to apply 

the statute, not create a judge-made exception because it may be 

better policy. “Avoiding the possibility of an undesirable result by 
67

essentially nullifying the [contract exception] would be tantamount 

to disregarding the legislature’s intent.” People v. Weeks, 2021 CO 

75, ¶ 43. 

¶ 157 I also acknowledge that the interplay between the HCAA cap 

provisions and the collateral source rule is not at all clear. But 

when the General Assembly enacted the HCAA, it did not disturb 

the contract exception. See Ch. 107, sec. 3, § 13-21-111.6, 1986 

Colo. Sess. Laws 679; Ch. 100, sec. 1, § 13-64-402, 1988 Colo. 

Sess. Laws 620. It surely could have, but it did not. We must 

apply the contract exception as written. “Inartful drafting by the 

legislature . . . doesn’t give us carte blanche to rewrite a statute.” 

Weeks, ¶ 38; see also Prairie Mountain Publ’g Co. v. Regents of Univ. 

of Colo., 2021 COA 26, ¶ 25. 

¶ 158 For these reasons, the trial court did not abuse its discretion 

by considering the sixth factor and allowing the judgment to exceed 

the cap. 

III. The Other Five Factors Independently Support Exceeding the 

Cap

¶ 159 Regardless of who’s right concerning the trial court’s analysis 

of the sixth factor, a remand to determine whether to exceed the 
68

cap is not necessary. The majority says it has “fair assurance that 

the error substantially influenced the outcome of the case.” Supra,

¶ 129 (quoting Johnson v. Schonlaw, 2018 CO 73, ¶ 11). 

¶ 160 I disagree. In my view, given the other valid reasons for 

exceeding the cap, any error by the court regarding factor six did 

not substantially influence the outcome. The first five factors “were 

proper, supported by the record, and sufficient to support the entry 

of judgment in excess of $1 million” independent of factor six. 

Supra, ¶ 113.

¶ 161 Most importantly, the jury’s award was not based on past 

medical expenses alone: $2.6 million of the $9 million principal 

verdict were for future medical expenses. Supra, ¶ 11, n.3. The trial 

court relied on this fact as the fifth factor for exceeding the $1 

million cap under the HCAA. 

¶ 162 Even if Mr. Scholle had no obligation to pay even one dollar to 

his medical providers for his past medical care, that fact is not 

dispositive of whether Mr. Scholle had an obligation to pay for part 

or all of his future medical care. To the contrary, it is purely 

speculative to assume that Mr. Scholle would not bear that cost. It 

is simply too much to expect the trial court to ascertain with any 
69

certainty the extent to which Mr. Scholle would be liable for future 

medical costs. 

¶ 163 The trial court was therefore well within its authority in 

inferring that Mr. Scholle would need to pay for his lifetime future 

medical care (which, according to the jury’s award, exceeded the 

cap by more than $1.5 million). Accordingly, based on factor five 

alone, any error regarding factor six did not substantially influence 

the trial court’s decision to exceed the cap. 

¶ 164 There are still four other factors on which the trial court relied 

to exceed the cap. The court found the amount of the award was 

supported by the evidence, that it would be fundamentally unfair to 

limit the damages, that Mr. Scholle carried a significant financial 

burden, and that he could not return to his chosen career. Supra, 

¶ 112. 

¶ 165 When these other factors are combined with Mr. Scholle’s 

future medical costs (as determined at the time of trial), there is no 

doubt in my mind that the trial court would have exercised its 

authority to exceed the cap in the absence of factor six. 
70

IV. Conclusion

¶ 166 For these reasons, I concur in part and respectfully dissent in 

part. I concur in all portions of the majority’s opinion, except its 

cap analysis and its disposition in remanding the cap determination 

to the trial court.