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Damage limit in local medical malpractice case goes to appeal, could set new law 

“Manifestly unfair”

click to enlarge Alex Rudnicki will require costly care for the rest of his life. - COURTESY PAMELA RUDNICKI
  • Courtesy Pamela Rudnicki
  • Alex Rudnicki will require costly care for the rest of his life.
A child whose 2005 birth went awry at Memorial Hospital and who suffered a brain injury was awarded $5.7 million in damages, pre-judgment interest and trial expenses last year, but a judge reduced the award to $5.2 million.

Now, the case could head to the Colorado Supreme Court where a win by the child, Alexander “Alex” Rudnicki, could “set new law” for medical malpractice cases, his attorney, David Woodruff of Denver, says via email.

In question are whether a child — or a child’s parents — is entitled to collect his or her medical expenses and whether prejudgment interest (interest paid on an award) must be limited by the Colorado Health Care Availability Act (HCAA).

The HCAA caps medical malpractice damage awards at $1 million except in special circumstances. It’s also been interpreted by the state appellate court that parents must file suit seeking medical expenses incurred by a minor child during the time he or she is considered a minor (up to the age of 22) within two years of the injury, or give up the right to those expenses. The reasoning behind the law is to limit medical malpractice damages so as not to encourage health care providers and their insurers to leave the state.

But Woodruff argues those limits deny what’s due the child for lifelong supervised care that will cost millions of dollars. His goal, he says, is “to hold the responsible parties accountable for the injuries they caused, rather than putting the burden of caring for him back on taxpayers” through Medicaid and other taxpayer-funded programs that help disabled people.

The lawsuit stems from Alex’s Oct. 5, 2005, birth at city-owned Memorial Hospital where physician Peter Bianco “negligently used a vacuum extraction device to forcefully pull baby Alexander through the birth canal,” his parents, Pamela and Francis Rudnicki, state in court papers.

After his birth, Alex was rushed to Children’s Hospital in Denver where he remained for three weeks and was given a “grim prognosis.” Since then, he has required physical, occupational and speech therapy; reads at a kindergarten level; has a right-sided weakness that prevents him from zipping his coat; and will require group home or supervised living for the rest of his life, his mother and Woodruff say.

The Rudnickis filed a lawsuit on Alex’s behalf in October 2014 against Memorial and Bianco. Memorial, which was leased to UCHealth in 2012, settled by having its insurer pay $1.75 million. Woodruff says he offered to settle with Bianco early on for $1 million, but the doctor and his insurance carrier refused any settlement.

On June 23, 2017, an El Paso County jury awarded 11-year-old Alex $4 million from Bianco, including various amounts for pain and suffering, lost wages and past and future medical expenses, including $435,000 for medical costs from birth until he’s 22.

In post-trial motions, however, Bianco argued the jury’s award should be reduced from $4 million to $1 million to comply with the HCAA cap. He also argued the judge shouldn’t allow pre-judgment interest for the period that pre-dated the filing of the lawsuit in 2014.

On Nov. 15, District Court Judge David Gilbert upheld $3.5 million of the $4 million jury award, despite the $1 million HCAA cap, because to do otherwise would be “manifestly unfair,” he wrote. Noting the HCAA permits judges to allow damage awards to top $1 million in certain circumstances, Gilbert wrote, “Based on the evidence produced at trial, the Court finds good cause to exceed the damage cap. The jury’s findings, well supported by the evidence presented, suggest that Plaintiff was permanently and severely injured during the birth process and suffers profound developmental consequences...”

But Gilbert reduced the jury’s allotment for “non-economic damages” from $355,000 to $300,000 in compliance with an HCAA cap and also cut the jury’s award for past and future medical expenses from $435,000 to $44,000. The latter decrease was in line with a Colorado Court of Appeals decision that says parents of an injured child are required to file a lawsuit seeking medical expenses up to age 22 within two years of the injury.

Woodruff says Alex’s parents couldn’t file sooner than 2014, because his disability remained unclear; kids often don’t show effects of brain injuries until elementary school.

On Dec. 15, Judge Gilbert ruled that pre-judgment interest of 9 percent per year on the modified jury award of $3.55 million begins when the case was filed in 2014, totaling $1.1 million so far. Woodruff argues it should begin at the time of injury, making interest alone exceed $3.5 million. With $550,000 in trial costs allowed by Gilbert, such as for expert testimony, the total awarded to Alex at the trial level was $5.2 million.

Woodruff says he will ask the state Supreme Court to hear his appeal on two points: the HCAA’s limit of prejudgment interest, and the reduction of medical expenses because the case wasn’t filed within two years of injury. He notes no limits apply to people injured by faulty products or in vehicle accidents. “Children injured by doctors and hospitals are treated differently” for “no legitimate reason,” Woodruff asserts.

Colorado Physician Insurance Corporation (COPIC) lawyer Mark Fogg says via email the HCAA assures stability of the health care system and physician retention. “Ultimately, the goal is to have a balanced system that fairly compensates patients and reinforces the practice of good medicine,” he says.

Bianco’s attorney, Brad Robinson, says in an email that the care provided was “appropriate given the circumstances,” but that Bianco, who previously argued in a motion that Gilbert should cap the jury award at $1 million, doesn’t plan to appeal Gilbert’s rulings.

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