dissenting:
Because I disagree with the majority's conclusion that none of the statutory provisions at issue in this case is ambiguous, and because I would resolve what I consider to be the ambiguity in the statutes in a way leading to a different conclusion about the HCAA's treatment of physical impairment or disfigurement, I respectfully dissent.
The crux of the majority's analysis, is that subsection (5) of section 18-21-1025, 5 C.R.S. (2001), which addresses the treatment of compensatory damages for physical impairment or disfigurement as part of the legislature's treatment of damages generally, is a rule of construction that clearly and unambiguously applies to the definitions of "Derivative noneconomic loss or injury" and "Noneconomic loss or injury" in subsections (2)(a) and (b). Because subsection (5) mandates that nothing in section 102.5 shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement, and subsection (8) of the same section limits damages for noneconomic and derivative noneconomic injury, the majority finds that subsection (5) "expressly directs that damages for physical impairment and disfigurement are not to be included in the definition of noneconomic damages." Maj. op. at 440. Since section 802 of the Health Care Availability Act (HCAA), § 13-64-3802, 5 C.R.S. (2001), defines "noneconomic loss or injury" for purposes of medical malpractice as being the equivalent of both "noneconomic loss or injury" and "derivative noneconomic loss or injury," as defined in section 13-21-102.5(2)(b) and (2)(a), the majority reasons that the HCAA cap on damages for "noneco-nomic loss or injury" does not apply to compensatory damages for physical impairment or disfigurement.
Initially, I disagree that subsection 102.5(5) unambiguously applies to the definition of "noneconomic loss or injury." Section 13-21-102.5 defines "noneconomic loss or injury" in subsection (2)(b) and in subsection (8) imposes limitations on the damages recoverable for such loss or injury. Rather than limiting or creating an exception to the definition of "noneconomic loss or injury" itself, subsection (5), on its face, speaks to the section's damage-limiting provisions. To the extent that subsection (5) can be read to merely exempt compensatory damages for physical impairment or disfigurement from the damage cap of subsection (8), rather than excluding from the category of "noneconomic loss or injury" altogether any "inconvenience, emotional stress, and impairment of the quality of life" caused by physical impairment or disfigurement, the statute is at least ambiguous.
In fact, however, subsection (5)'s specific reference to limitations on damages rather than to the nature of injuries, as well as the stated purpose of the HCAA, see § 13-64-102 (Legislative declaration), its more rigid limitation of damages,1 and its choice to broaden rather than to narrow its definition of "noneconomic loss or injury" by including both personal and derivative injuries,2 all militate in favor of construing subsection (5) as applying merely to the damage caps of subsection (8) rather than to the meaning of "noneconomic loss or injury" itself. Because the definition of "noneconomic loss or injury" in subsection 102.5(2)(b) already includes various kinds of loss or injury that could be *443attributable to physical impairment or disfigurement, subsection (5), even if it were applicable to subsections (2)(b), would provide more of an exception to the existing definition than a rule of construction.3 Unlike the majority, I would not attribute to the legislature an intent to include an exception to the definition of "noneconomic loss or injury," not contained in the definitional subsection itself, from language expressly incorporating the definitional subsection but failing to mention any subsection containing an exception to it.
Nor do I believe that the rule of construction requiring a clear intent to abrogate the common law requires a different resolution of the ambiguity. See maj. op. at 440-441. The HCAA's intent to abrogate the common law by limiting damages for medical malpractice could not be more clear. To that end, the statutory scheme limits the total amount recoverable for all damages, past and future, for all defendants, in any civil action for damages in tort brought against a health care professional or institution, including any derivative claim by any other claimant. See § 18-64-302, 5 C.R.S. (2001). The majority rationale does not question that the legislature intended to and successfully has limited common-law damages for physical impairment and disfigurement. Maj. op. at 485-436. The only question at issue in this case is whether they fall within the sub-category of damages for noneconomic loss or injury, defined broadly as damages recoverable under the laws of this state for nonpecuniary harm. While damages for physical impairment and disfigurement have been treated as involving more than damages for pain and suffering or loss of earning capacity, and for that reason have sometimes involved special requirements of proof, I find no indication that they would have been considered to fall outside a comprehensive scheme categorizing compensatory damages, both past and future, according to whether the harm from which they result is pecuniary or nonpecuniary in nature.
While I do not find the language of incorporation in section 802 of the HCAA and the provisions of section 18-21-102.5, in and of themselves, to be clear and unambiguous with regard to the HCAA's intended treatment of physical impairment or disfigurement, I do believe that the statutory scheme as a whole expresses a clear intent to include the nonpecuniary aspects of the harm resulting from physical impairment or disfigurement within the category of "noneconomic loss or injury," and that the language of the statutes is susceptible of such a construction. I therefore respectfully dissent.
Justice KOURLIS joins in the dissent.
. Unlike the general damages provision of section 13-21-102.5(3), the HCAA does not permit the limit on damages for noneconomic loss or injury to be doubled when justified by clear and convincing evidence.
. Unlike section 13-21-102.5(3), derivative non-economic loss or injury and noneconomic loss or injury are combined and treated under a single damage cap of $250,000.
. The majority places great emphasis on the word "construed" in subsection (5) and concludes that although the definition of noneco-nomic loss or injury in subsection (2)(b) "may encompass other forms of noneconomic damages in addition to those listed, the 102.5(5) physical impairment subsection mandates that physical impairment and disfigurement are not among those other forms." Maj. op. at 441-442. The list in subsection (2)(b), however, need not be expanded to include the nonpecuniary harm resulting from physical impairment and disfigurement because it already does so, in the absence of some exception or limitation on the terms that are already included.