The Colorado Supreme Court gave a chilly reception on Tuesday to the idea that judges can essentially recalculate a jury’s award to injured plaintiffs in medical malpractice cases.

Under state law, damages in medical malpractice lawsuits are generally capped at $1 million as part of a 1988 policy change 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.

But the law is unclear about what judges are supposed to do once they override the cap to arrive at an ultimate dollar figure. Previously, the state’s Court of Appeals decided judges do not have to accept the jury’s amount, but they may uphold the award in full if it is not “grossly and manifestly excessive.”

During oral arguments on Tuesday, the Supreme Court considered whether the Court of Appeals settled on the correct approach, or if judges have broad authority to review and ratchet down the jury’s award, to the benefit of doctors and hospitals who cause injuries.

“If you were right about the court essentially having unfettered discretion, doesn’t it strike you that the legislature would have been a little bit more clear about that?” asked Justice William W. Hood III to the attorney for Banner Health.

“I don’t see anything in the statute that says you ignore the jury’s verdict once the court decides there’s grounds to exceed the cap. And your position, I fear, almost ignores the jury’s verdict,” added Justice Richard L. Gabriel.

Justice Maria E. Berkenkotter wondered if giving judges broad discretion to slash a jury’s verdict would mean they also have broad discretion to find the plaintiff is owed more money.

“Can the plaintiff then come in with evidence that healthcare costs have exploded and are exceptional?” she asked. “What would the principled reading be that would allow it to be uni-directional?”

“That is exactly what’s going to happen,” responded Darin L. Schanker, the attorney for plaintiffs Chance and Erin Gresser. “We would argue that, in fact, if the judge substitutes its judgment for that of the jury, the verdict should be in excess of what the jury entered because there was strong evidence to support it.”

The Gressers brought a medical negligence claim against Banner Health, alleging staff delayed treatment for their newborn daughter’s infection and caused extensive, lifelong injuries. After a 2022 trial, a Weld County jury awarded the Gressers $27.6 million, largely for their daughter’s past and future medical costs. With interest, the total award was $39.8 million.

District Court Judge Todd Taylor concluded the long-lasting injuries, the need for Erin Gresser to provide care around the clock and the costs of medical treatment amounted to good cause to override the $1 million cap. In his view, the decision was binary: A judge can either impose the cap or override it and accept the jury’s full award. Taylor concluded “substantial evidence” supported the dollar figure the jury chose.

A three-judge Court of Appeals panel disagreed slightly with Taylor. The panel rejected the idea that judges are obligated to simply accept the jury’s calculation if they override the cap. Instead, they can adjust the jury’s award if it is “grossly and manifestly excessive.” Because Taylor ultimately found the evidence justified the amount, the Court of Appeals upheld the award.

Banner Health appealed to the Supreme Court, arguing juries’ full awards will always be upheld under that standard. The hospital and the outside groups supporting it argued lawmakers had effectively replaced jury verdicts with the $1 million cap, and “additional damages” above that threshold should be reviewed for fairness — including fairness to defendants.

“Banner Health is a corporation whose annual revenues are in the billions and growing,” responded the American Association for Justice, a legal group focused on advocating for injured plaintiffs. “There is no ‘fairness’ in requiring plaintiffs to donate a portion of the compensation a jury awarded to fund their future medical needs to the defendants who harmed those plaintiffs solely to ease the pain to those defendants’ bottom lines.”

During arguments, multiple justices were concerned Banner Health was essentially proposing a second mini-trial over damages after the jury had already given its answer.

“What’s the point of having the jury sit through a trial, determine damages and then if the cap gets exceeded, basically say, ‘The court’s gonna do whatever the court’s gonna do?'” asked Justice Carlos A. Samour Jr.

The law “says the court can exceed the $1 million cap. I don’t see anything that says the jury verdict goes away,” added Gabriel.

And yet, observed Chief Justice Monica M. Márquez, when overriding the cap, the law was not clear about “do we start at a million and work our way up or do we start at the jury verdict and work our way down?”

Schanker, the plaintiffs’ attorney, indicated that if a mini-trial was warranted to determine how much more than $1 million a victorious plaintiff should receive, “then the Capitol is the place to argue that in January. Because that’s nowhere in the statute.”

The case is Banner Health v. Gresser et al.