Health Law Monitor
Colorado Caps on Noneconomic Damages for Medical Malpractice Cases Remain Under Attack
September 16, 2025
As discussed in Casey Kannenberg’s June Blog post, recent legislation in Colorado is going to dramatically impact the defense of medical negligence claims by tripling the applicable caps for non-economic damages over the next five years. The cap is going to grow over the next five years from $300,000 to $875,000. After that, the noneconomic damages cap will be adjusted biennially for inflation. In wrongful death cases caused by medical malpractice, the noneconomic damages cap will increase to $1.575 million over the next five years.
On September 8, 2025, the Colorado Supreme Court handed down a decision in Bianco v. Rudnicki (Supreme Court Case No. 23SC871), which will further increase effective awards despite the caps. Prior to this decision, prefiling interest was considered to be part of the damage award and was subject to the caps. However, the Colorado Supreme Court has now reversed that approach to the extent that the prefiling interest applies to economic damages and has ruled that prefiling interest on economic damages is not to be considered part of the underlying damage award. Instead, it is now included in the category for “economic” damages and is only subject to the presumptive $1 million cap on all damages. This presumptive cap can be exceeded through a motion to exceed the cap based on “good cause.” This has effectively meant that there is no cap on “economic damages” if those damages were reasonably established by the evidence at trial. When a large verdict is entered, the prejudgment interest is also a potentially large amount (as is the use of increasingly inflated “life care plans” for estimating future damages). That, however, did not include “prefiling” interest under prior appellate opinions. This ruling changes that by determining that prefiling interest on economic damages is part of the economic damages award and falls within the “good cause” exception to the presumptive cap. This, therefore, adds another damage component to be considered in evaluating potential verdict ranges.
On the other hand, an argument remains that pre-judgment/pre-filing interest on future damages, whether they be economic or noneconomic damages, does not provide “good cause” for exceeding the presumptive $1 million cap, since it can be argued that any prejudgment interest on future damages that have not yet been incurred is not a true economic loss. Indeed, those damages had not yet been incurred, but are simply a creation of the statute. This argument should be made when applicable, but the trend is certainly moving toward the validation of higher verdicts.
It should be noted, however, that even with the higher damage caps that Colorado is now facing, it is still better than not having caps at all. Even a cap of $875,000 on noneconomic damages protects against a multi-million dollar award for pain and suffering and other noneconomic losses. These high-dollar awards certainly appear to be increasing as time goes on and our jurors become younger. So, for states that do not have caps on noneconomic damages, caps should still be pursued with the state legislature as a means of controlling medical malpractice insurance costs and the related availability of medical care. This was the rationale for Colorado’s caps from the outset, and that has survived constitutional challenges.