Colorado Supreme Court to hear medical malpractice appeal, signals interest in DUI case (2024)

The Colorado Supreme Court announced on Monday it will review whether the longstanding provision in state law generally capping medical malpractice awards to plaintiffs also applies to the interest accrued from the time of the plaintiff's injury, without exception.

At least three of the court's seven members must agree to hear a case on appeal.

The justices also signaled they may intervene in an ongoing criminal prosecution in Boulder County after a judge barred large swaths of evidence from being used against a drunk driving suspect, ostensibly because the arresting officer activated his camera later than state law required him to.

Two decades of interest

Alexander Rudnicki suffered injuries during his 2005 birth that required ongoing therapy and special education. Years later, he sued his doctor, Peter Bianco, for medical malpractice. An El Paso County jury sided in Rudnicki's favor in 2017, awarding him $4 million.

Under state law, damages in such cases are generally capped at $1 million as part of a 1988 reform intended to curb the costs of medicine and ensure continued availability of health care.There is a safety valve, however, permitting trial judges to override the cap if there is "good cause" to believe the limitation is unfair.

Initially, District Court Judge David A. Gilbert deducted $391,000 in damages and overrode the cap for the remaining amount. The Supreme Court later clarified Rudnicki was entitled to the omitted $391,000. Gilbert reinstated the award and concluded Rudnicki was also entitled to interest from the 2005 birth up to the time of his order in 2022. Gilbert added he still intended to override the cap and awarded an additional $1.3 million to Rudnicki.

Bianco appealed, but a three-judge panel for the Court of Appeals agreed the 17 years of prefiling, prejudgment interest was not something that must be capped no matter what. Rather, it was also subject to the override.

"The legislature apparently recognized that the policy behind the (cap) should, under certain circ*mstances, yield to a plaintiff’s right to be made whole,"wrote Judge Jaclyn Casey Brownin November.

Bianco again appealed, arguing to the Supreme Court that the Court of Appeals ignored a crucial word in the override language: the $1 million cap may be exceeded for damages "only"— not for interest. Therefore, Rudnicki should have been awarded far less than Gilbert decided.

The Supreme Court will review whether the cap override applies to the interest in Rudnicki's case.

The case isBianco v. Rudnicki et al.

When to activate one's camera?

When international demonstrations erupted in May 2020 following the police killing of George Floyd in Minneapolis, Colorado legislators enacted sweeping reforms to law enforcement, ranging from body-worn cameras and use of chokeholds to permitting civil suits against officers.

Lawmakersalso included a provisionstating officers should activate their body-worn or dashboard cameras "during any interaction with the public initiated by the peace officer" for the purpose of "investigating possible violations of the law." Officers who fail to do so run the risk of having their unrecorded observations excluded as evidence.

Colorado Supreme Court to hear medical malpractice appeal, signals interest in DUI case (2)

After midnight in August 2023,Boulder County sheriff's Deputy Peter Markusen saw a car driving under the speed limit and allegedly swerving in its lane. Markusen, traveling behind the car, activated his radar to measure the speed and found the car was going 15 mph under the limit. He turned on his police lights, at which point his dash cam began to record.

Markusen approached the driver, Victor Quiroz, and saw evidence of marijuana use and impairment. He arrested Quiroz on suspicion of driving under the influence.

Quiroz's lawyers then moved to exclude a substantial portion of the evidence against him. They reasoned:

• Markusen initiated an "interaction" when he began to follow Quiroz for the purpose of "investigatingpossible violations of the law"

• He did not activate his dash cam, meaning his unrecorded observations of the swerving should be excluded

• Because the only detail captured before the start of the recording— that Quiroz was driving under the speed limit— did not establish reasonable suspicion of a crime, Markusen had no basis to pull over the car

• With no basis for a stop, the case must be dismissed

After a hearing in April, County Court Judge Zachary Malkinson agreed with the defense after noting he had never encountered this scenario before. Malkinson acknowledged officers must be able to observe conduct in order to decide whether to investigate, and should not need to turn on their recording equipment during that window. In this instance, Markusen's act of turning on his radar amounted to an investigation, for which he should have activated the camera.

"Without the unrecorded observations made by the deputy, all that the court is left with is Markusen's observation the car was driving 'slow,'" Malkinson wrote, adding, "the statutes at issue appear to be untested and there is no case law."

Colorado Supreme Court to hear medical malpractice appeal, signals interest in DUI case (3)

The district attorney's office immediately appealed to the Supreme Court. It contended Malkinson's ruling was highly problematic, as the law does not require officers to turn on their cameras whenever they simply investigate. Instead, they also need an "interaction"— which did not occur until Markusen activated his lights to pull Quiroz over.

Senior Deputy District Attorney Ryan P. Day argued that under Malkinson's logic, a police officer who watches a man and woman argue in a car and calls in the license plate to dispatch would have her observations excluded as evidence, even if the man immediately shot and killed the woman, so long as the officer neglected to activate her camera upon making the call.

"These outcomes would do nothing to enhance law enforcement’s integrity during police-citizen interactions," Day argued.

The Supreme Court directed Quiroz and Malkinson to respond to the prosecution’s petition.

The case isPeople v. Quiroz.

Colorado Supreme Court to hear medical malpractice appeal, signals interest in DUI case (2024)

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