Jim Avery is currently handling an $8+ million claim involving a brain injury to a 23 year old young man who was injured as a result of a toxic reaction to a non-FDA approved drug (Ketamine) that was prescribed by his former physician, Daniel Brookoff, M.D. (Deceased). The case is scheduled for trial in the Denver District Court in March, 2014.
Like most medical malpractice cases involving catastrophic injury, the case will be subject to the damages limitations and other provisions of the Colorado Health Care Availability Act . The provision on damages limitations is contained in Colo. Rev. Stat. Sec. 13-64-302, which provides:
§ 13-64-302. Limitation of liability – interest on damages
||As used in this section:
||“Derivative noneconomic loss or injury” means noneconomic loss or injury to persons other than the person suffering the direct or primary loss or injury. “Derivative noneconomic loss or injury” does not include punitive or exemplary damages.
||“Direct noneconomic loss or injury” means nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, physical impairment or disfigurement, and impairment of the quality of life. “Direct noneconomic loss or injury” does not include punitive or exemplary damages.
||Nothing in this section shall be construed to prohibit a recovery for economic damages, whether past or future, resulting from physical impairment or disfigurement.
||The total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional, as defined in section 13-64-202, or a health care institution, as defined in section 13-64-202, or as a result of binding arbitration, whether past damages, future damages, or a combination of both, shall not exceed one million dollars, present value per patient, including any claim for derivative noneconomic loss or injury, of which not more than two hundred fifty thousand dollars, present value per patient, including any derivative claim, shall be attributable to direct or derivative noneconomic loss or injury; except that, if, upon good cause shown, the court determines that the present value of past and future economic damages would exceed such limitation and that the application of such limitation would be unfair, the court may award in excess of the [$1 million] limitation the present value of additional past and future economic damages only. The limitations of this section are not applicable to a health care professional who is a public employee under the “Colorado Governmental Immunity Act” and are not applicable to a certified health care institution which is a public entity under the “Colorado Governmental Immunity Act”. For purposes of this section, “present value” has the same meaning as that set forth in section 13-64-202(7). The existence of the limitations and exceptions thereto provided in this section shall not be disclosed to a jury.
||Effective July 1, 2003, the damages limitation of two hundred fifty thousand dollars described in paragraph (b) of this subsection (1) shall be increased to three hundred thousand dollars, which increased amount shall apply to acts or omissions occurring on or after said date. It is the intent of the general assembly that the increase reflect an adjustment for inflation to the damages limitation.
||In any civil action described in subsection (1) of this section, 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 a part of the damages awarded in the action for the purposes of this section and is included within each of the limitations on liability that are established pursuant to subsection (1) of this section.
History. L. 88: Entire article added, p. 619, § 1, effective July 1. L. 95: Entire section amended, p. 317, § 1, effective July 1. L. 2003: (1) amended, p. 1788, § 4, effective July 1. L. 2004: (1)(a)(I), (1)(a)(II)(A), and (1)(b) amended, p. 501, § 2, effective January 1, 2005.