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Kildahl v. Tagge12/27/1996
ering an intravenous solution). Hence, a new trial is required.
II
Among the issues that may arise on retrial is plaintiffs' contention that the trial court erred in refusing to submit a "thin skull" instruction to the jury. We disagree.
A "thin skull" instruction is appropriate when a defendant seeks to avoid liability by asserting that the victim's injuries would have been less severe had the victim been an average person. Schafer v. Hoffman, 831 P.2d 897 (Colo. 1992).
Here, defendants presented evidence that decedent was morbidly obese and suffered from both a terminal lung condition and the hernia condition. However, defendants did not attempt to prove that decedent would have survived the hernia complications if not for these persisting conditions. Rather, this evidence was presented relative to the appropriate standard of care for decedent and the course of medical treatment decided upon by defendants.
Thus, the trial court did not err in refusing the "thin skull" instruction.
III
Finally, plaintiffs contend that the trial court erred in refusing to allow them to assert a claim under § 26-4-403(3), C.R.S. (1996 Cum. Supp.) for decedent's medical expenses paid by the State of Colorado's Medicaid program. We disagree.
None of the plaintiffs appears in this litigation as a representative of the decedent's estate. Plaintiffs presented the trial court with an assignment agreement between them and the State of Colorado for decedent's medical expenses. The trial court concluded that plaintiffs were not proper assignees under § 26-4-403(3) and were precluded from asserting a claim for the medical expenses paid by the state.
Section 26-4-403(3) provides:
If medical assistance is furnished to . . . a recipient . . . for which a third party is liable, the state department has an enforceable right against such third party for the amount of such medical assistance
In determining whether the assignment to plaintiffs was proper under § 26-4-403(3), we must first consider the plain language of the statute. See People v. District Court, 713 P.2d 918 (Colo. 1986). If that language is clear and unambiguous, we must interpret and apply the statute as written. See City of Aurora v. Board of County Commissioners, 919 P.2d 198 (Colo. 1996).
The plain language of § 26-4-403(3) allows the state to assign its rights only to the recipient or the recipient's attorney. Thus, the trial court correctly ruled that plaintiffs were not proper assignees and were precluded from asserting a claim for medical expenses.
The judgment is reversed and the cause is remanded for a new trial consistent with the views expressed in this opinion.
JUDGE MARQUEZ and JUDGE TAUBMAN concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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