The landscape surrounding Colorado’s healthcare malpractice damage caps continues to shift. Earlier this year, the Colorado General Assembly enacted wholesale changes to the Health Care Availability Act (HCAA). These changes represent the first large-scale revision since 2020. In addition, recently, the Colorado Supreme Court clarified the role of the jury in matters where a plaintiff has proven an exception to the enforcement of the HCAA damage caps.
Beginning with cases filed in 2025, the HCAA’s non-economic damages cap increased from $300,000 to $415,000. The cap will increase by $115,000 each year, reaching $875,000 in 2029. In addition, the HCAA’s wrongful death damage cap increased to $555,000. The wrongful death damage cap will increase by $255,000 each year until 2029, when the cap reaches $1,575,000. Thereafter, these caps will be adjusted for inflation every two years beginning in 2030. Finally, the legislation imposes a soft cap of 125% of wrongful death damages if wrongful death damages exceed $1,000,000.
Against this backdrop, on November 24, 2025, the Colorado Supreme Court issued its decision in Banner Health v. Gresser, 2025 CO 60M. In Gresser, the court concluded that when a plaintiff has established good cause to exceed the HCAA damage caps, the proper amount of damages is governed by common law, meaning that the jury retains its authority to determine the amount of damages. The case arose from claims of malpractice during labor, delivery, and post-partum care resulting in significant injuries to a child, including “severe permanent neurological injuries, developmental delays, a seizure disorder, communication delays, physical impairment, and intermediate cerebral palsy.” A jury found Banner Health negligent and awarded $27,647,274.23 in economic damages, exceeding the statutory cap of $1,000,000 in medical malpractice actions. The plaintiffs moved to exceed the statutory cap and receive the full jury award. Banner Health moved to reduce the jury award to the statutory cap. The trial court enforced the jury’s damage award, and Banner Health appealed.
In upholding the decisions of both the trial court and Colorado Court of Appeals, the Colorado Supreme Court held that if a plaintiff proves an exception to the HCAA damage cap applies, a trial court should defer to the jury in awarding damages. The trial court retains the ability to review the sufficiency of the evidence supporting the damage award and to entertain specific, narrow, excessive-amount challenges. While the consequences of the court’s decision are yet to be seen, it appears likely that it will remove some of the HCAA’s protection against “nuclear” jury verdicts.
Given the continuing changes to Colorado’s healthcare malpractice landscape, it is more important than ever that Colorado healthcare providers retain counsel who can accurately forecast risk and exposure, while appropriately defending their interests.
GRSM’s healthcare practice group has the expertise to help navigate these challenges across the healthcare industry. Please contact the author or your GRSM attorney if you have questions about Colorado’s evolving healthcare malpractice framework or any other issues impacting your organization.