January 22, 2022

On October 5, 2005, Alexander Rudnicki suffered serious injuries during his birth when OB-GYN Peter Bianco, D.O. negligently performed an operative vaginal delivery using a vacuum extractor to assist in that delivery. At birth, Alexander had severe scalp abrasions and bruising on his skull, and medical staff observed him to be floppy, quiet, and unresponsive, with diminished function and depressed Apgar scores. Alexander was immediately intubated and required intensive medical treatment, which revealed that he had suffered injuries to his brain as a result of the trauma to his scalp and skull caused by the vacuum extraction. As a result of his injuries, Alexander has required ongoing physical, occupational, and speech therapy; he is intellectually disabled and enrolled in special education at school; and he is not likely to be able to live independently in the future.

Although the applicable statute of limitations is tolled with respect to a minor child’s negligence claim against a health care professional, it is not tolled with respect to the parents’ derivative claim for the child’s pre-majority medical expenses. As a result, under the common law rule, unless the parents of an injured minor either relinquish their claim for pre-majority medical expenses to the minor or assert that claim within the two-year statute of limitations, a tortfeasor will escape responsibility for some—and perhaps a substantial portion—of the damages that the tortfeasor caused the child. And this is so even though the child did nothing to waive any right to recover such damages and even though the child might have had until their twentieth birthday to bring such a claim had the claim belonged to them.

The Colorado Supreme Court stated in its December 13, 2021 opinion in this case: “In this medical malpractice action arising from substantial injuries that an infant suffered during his birth, we must determine who may recover damages for the medical expenses that a child incurs prior to turning eighteen. Specifically, we granted certiorari to decide (1) whether to adhere to a common law rule under which only a minor plaintiff’s parents may recover tort damages for medical expenses incurred by their unemancipated minor child and (2) if we adhere to that rule, whether the Colorado Department of Health Care Policy and Financing (“HCPF”) may properly assert, against any amounts recovered by the child, a lien to recoup the pre-majority medical expenses that HCPF paid on the child’s behalf, such that an exception to the common law rule applies.”

The Colorado Supreme Court held: “We now conclude that the traditional rationales for the common law rule no longer apply and that the realities of today’s health care economy compel us to abandon that rule. Accordingly, we conclude that in cases involving an unemancipated minor child, either the child or their parents may recover the child’s pre-majority medical expenses, but double recovery is not permitted (we are intentionally using the singular “they” in this opinion). In light of this determination, we need not decide whether an exception to the common law rule applies in this case.”

The Colorado Supreme Court explained: “Under the common law rule, when an injured child is covered by Medicaid and their parents fail to file a timely claim for pre-majority medical expenses, neither the child nor their parents can recover these damages, thereby reducing (if not eliminating) the pool of funds from which HCPF can seek reimbursement. In turn, less funding is available to pay for the care of individuals who rely on Medicaid throughout the state. And in such a scenario, the tortfeasor escapes liability while taxpayers are left holding the bag, which is directly contrary to the long-settled principle that “whoever unlawfully injures another shall make her whole” … It is not clear to us why anyone is better served by retaining antiquated rules that trigger substantial litigation, rather than adopting a clear and simple rule that permits children to recover and medical providers to assert liens, as allowable by law, against that recovery.”

Source Rudnicki v. Bianco, D.O., 2021 CO 80.

If you or your child may have been injured during pregnancy, labor, or delivery as a result of medical malpractice in Colorado or in another U.S. state, you should promptly find a Colorado medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your birth injury medical malpractice claim for you and represent you and your child one in a birth injury medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find birth injury medical malpractice attorneys in your state who may assist you.

Turn to us when you don’t know where to turn.