By: Eric R. Holway
Under Colorado law, the statute of limitations applicable to a minor’s cause of action for medical negligence does not begin to run until the minor reaches the age of eighteen, unless the minor has a court-appointed legal representative.1 An injury to a minor child essentially generates two separate causes of action: one for the pre-majority medical expenses; and one for post-majority medical expenses.2
As it stands, Colorado’s common law holds that the right to recover pre-majority damages belongs to the child’s parent(s), not the child himself. “Under the general common law rule, only a parent may recover for a minor child’s pre-majority medical expenses.”3 This is because parents are the ones who ultimately have an obligation to provide for the minor child’s support, including medical expenses. “As the parties primarily liable for the medical expenses of their minor children, parents have a legally recognized claim for reimbursement for those medical expenses when their minor child has sustained a physical injury.”4
The injured minor child is only entitled to recover economic damages for losses he will have “after he reaches the age of 18 (or is otherwise emancipated).”5 This includes damages for any future reasonable and necessary medical expenses and loss of future earnings that will be incurred after age 18. All economic damages incurred prior to the time the child reaches age 18 are recoverable only by the child’s parents.6 This is, in part, because a child cannot contract for medical care.7
The only circumstances under which this general rule would not apply is where the child is an emancipated minor and incurs the medical expenses himself, or the parents relinquish their claim for economic damages prior to the statute of limitations expiring.8
Why does this matter? Because the parents’ claim (like virtually all medical malpractice claims) carries only a two-year statute of limitations. If the child waits more than two years to file suit for injuries he sustained as a minor, the statute of limitations on the parents’ claim for pre-majority medical expenses would have already expired. This, of course, reduces the amount the plaintiff (and his attorney) can potentially recover.
The Supreme Court of Colorado granted the petition for writ of certiorari on this issue in the case Rudnicki v. Bianco9 . The Court has not yet issued a ruling, but one is expected in the near future. If the statute of limitations for pre-majority medical expenses were extended, this would force healthcare providers (and their insurers) to defend claims potentially up to twenty years after care is rendered. This would result in increased liability insurance costs for providers.
1 Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999) (en banc).
2 Kinsella v. Farmers Ins. Exchange, 826 P.2d 433, 435 (Colo. App. 1992).
3 Pressey v. Children’s Hosp. Colo., 2017 COA 28, ¶ 26 (unpublished); see also Elgin v. Bartlett, 994 P.2d 603, 606 (Colo. 1999).
4 Estate of Reed v. Reed, 201 P.3d 1264, 1267 (Colo. App. 2009).
5 CJI-Civ. 6:2, ¶ 2 (2018) Personal Injuries – Minor Child.
6 CJI-Civ. 6:3, ¶ 1 (2018) Personal Injuries – Minor Child – Measure of Parents’ Damages.
7 C.R.S. §13-22-101(1)(a)(c); Jones v. Dressel, 623 P.2d 370,373 (Colo. 1981).
8 See Pawnee Farmers’ Elevator Co. v. Powell, 227 P. 836, 839 (Colo. 1924); Kennedy v. Pelster, 813 P.2d 845, 846 (Colo. App. 1991).
9 No. 19SC631, 2020 WL 2298411 (Colo. May 4, 2020).