April 30, 2017

Colorado Court of Appeals: Contract Exception to the Collateral Source Statute is Applicable in Post-Verdict Proceedings to Reduce Damages

The Colorado Court of Appeals issued its opinion in Pressey ex rel. Pressey v. Children’s Hospital Colorado on Thursday, March 9, 2017.

Medical Malpractice—Health Care Availability Act—Damages Cap—Medicaid—Collateral Source Statute—Contract Exception—Pre-majority Economic Damages—Minor—Statute of Limitations.

Naomi Pressey (Naomi), by and through her conservator Jennifer Pressey, sued Children’s Hospital Colorado (Hospital) for negligence. The case was tried to a jury, which found the Hospital negligent and awarded Naomi $17,839,784.60. The damages award included past medical expenses, past noneconomic losses, future medical expenses, future lost earnings, and future noneconomic losses. After trial, the court reduced the damages to $1 million based on the legislative directive in C.R.S. § 13-64-302(1)(b) of the Health Care Availability Act (HCAA). The court approved Naomi’s motion to exceed the damages cap for good cause and entered judgment in her favor for $14,341,538.60.

On appeal, the Hospital argued that the court erred in excluding evidence of Medicaid benefits and private insurance available to Naomi in the post-verdict proceeding to exceed the damages cap. Sound public policy supports both the cap and the contract exception to the collateral source statute. The Colorado Court of Appeals concluded that the contract exception to the collateral source statute is applicable in post-verdict proceedings to reduce damages in medical malpractice actions under the HCAA. Medicaid benefits are paid on behalf of the injured party and are thus collateral sources subject to the contract exception. Accordingly, the trial court correctly did not consider Medicaid payments and private insurance in determining whether to exceed the HCAA damages cap.

The Hospital also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict because Naomi failed to establish that she, rather than her parents, was entitled to her pre-majority economic damages. Parents own the legal right to seek reimbursement for a minor’s pre-majority economic damages. Here, Naomi’s parents did not relinquish this right and failed to institute a claim within the applicable statute of limitations.

The Hospital further argued that irrespective of the evidence of Medicaid and private insurance benefits, Naomi did not establish good cause to exceed the damages cap. The trial court considered a multitude of factors in concluding there was good cause. Its decision was not manifestly arbitrary, unreasonable, or unfair, and was not a misapplication of the law.

Lastly, the Hospital argued that Naomi received a duplicate award for future medical care and lost future earnings. The court concluded there is record support for the trial court’s findings that the damage award does not overlap with the future lost earnings award.

That portion of the judgment awarding pre-majority economic damages to Naomi was reversed. The judgment was affirmed in all other respects. The case was remanded for recalculation of the total amounts owed by the Hospital.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Within Discretion to Deny Mistrial Based on Defense Counsel’s Inappropriate Remarks

The Colorado Court of Appeals issued its opinion in Acierno v. Garyfallou, MD on Thursday, June 16, 2016.

Medical Malpractice—Mistrial—Prosecutorial Misconduct—Ex Parte—Witness—Physician–Patient Privilege—Costs—CRS § 13-16-105.

Acierno filed a medical malpractice suit against Dr. Garyfallou and other defendants. The other defendants settled, and the jury returned a verdict in favor of Dr. Garyfallou. Plaintiff appealed and defendant cross-appealed the trial court’s order denying his motion for costs.

On appeal, Acierno asserted that defense counsel’s (1) misstatement of the trial court’s jury instruction on the applicable standard of care and (2) improper comments related to “runaway juries, runaway verdicts, and adverse media” warranted a mistrial. Here, the jury had a written copy of the correct instructions, the judge carefully considered Acierno’s request for a mistrial, and the court took remedial actions by admonishing defense counsel in front of the jury and advising the jury to disregard defense counsel’s statements. Therefore, the court sufficiently addressed any prejudice to Acierno and a mistrial was not warranted. In addition, the trial court did not abuse its discretion in denying the motion for new trial (1) based on changed testimony by prosecutorial witnesses, because this argument was not preserved by a contemporaneous objection; and (2) based on Acierno’s contention that a defense witness violated the court’s sequestration order, because the trial court found there was no violation and Acierno did not point to anything in the record establishing that the court’s finding was clearly erroneous.

Acierno also contended that the trial court erred when it allowed defense counsel to meet ex parte with the radiologist who interpreted Acierno’s MRI and MRA results. The trial court did not abuse its discretion because it confined defendant’s informal questioning to matters not subject to physician–patient privilege and Acierno did not assert that residually privileged information was divulged.

Acierno also contended that the trial court erred in denying his motion for directed verdict on Dr. Garyfallou’s defense of pro rata liability. Because the jury concluded that the doctor did not breach the applicable standard of care, this error was harmless.

Dr. Garyfallou contended, and the Court of Appeals agreed, that the trial court erred in denying his motion for costs against Acierno. Such an award is mandatory under CRS § 13-16-105.

The judgment was affirmed, the order denying costs was reversed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Hospital Assumed Duty to Protect Suicidal Patient from Self-Harm

The Colorado Supreme Court issued its opinion in In re P.W. v. Children’s Hospital Colorado on Monday, January 25, 2016.

Torts—Medical Malpractice—Comparative Negligence.

In this original proceeding arising out of a medical malpractice action, the Supreme Court considered whether the defendant hospital’s comparative negligence and assumption of risk defenses were properly dismissed on summary judgment. First, the Court analyzed the nature of defendant’s duties toward the patient and determined that defendant undertook to render mental healthcare services to prevent the patient from engaging in self-harm. The Court then reasoned that the scope of defendant’s assumption of duty subsumed any legal duty the patient had not to engage in foreseeable self-destructive behavior. Accordingly, the Court concluded that defendant cannot assert the patient’s comparative negligence under the facts of the case and discharged the rule.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: No Abuse of Discretion to Deny Eve of Trial Amendment of Final Pretrial Order

The Tenth Circuit Court of Appeals issued its opinion in Monfore v. Phillips on Tuesday, February 10, 2015.

Sherman Shatwell went to the hospital complaining of neck pain, and although doctors determined he had throat cancer, he was not told until a year later, when it was too late to treat it. His surviving spouse and child brought negligence claims against the doctors and hospital. Two weeks before trial, a settlement was reached with some of the parties but not with Dr. Phillips. Dr. Phillips sought to amend the final pretrial order in order to claim contributory negligence by the settling parties but the trial court denied his motion. The jury found Dr. Phillips liable for negligence and awarded over $1 million in damages. Dr. Phillips appealed, arguing the district court’s denial of his motion to amend was reversible error.

The Tenth Circuit, in a majority opinion penned by Judge Gorsuch, conducted an abuse of discretion review and found none. The majority opinion admonished Dr. Phillips for not anticipating an eve of trial settlement by some of his co-defendants, and was unsympathetic to what it saw as Dr. Phillips’ regret for his decision to present a unified front with his co-defendants. The majority opinion also pointed out the prejudice to the plaintiff that could have come from Dr. Phillips’ eve of trial modification of the final pretrial order. Finding that even though the district court could have allowed Dr. Phillips to “rejigger his defense at the last minute,” the majority opinion concluded that outcome was far from mandatory. The Tenth Circuit affirmed the judgment of the district court.

Judge Moritz wrote a separate concurrence to point out that this was a closer call than the majority opinion implied. Judge Moritz evaluated the appeal under the four-pronged Koch analysis and found that the majority opinion focused too much on lack of surprise to Dr. Phillips rather than prejudice to the opposing party. Judge Moritz pointed out that although Dr. Phillips should not have been surprised by the settlement of some of the co-defendants, likewise the plaintiff should not have been surprised that Dr. Phillips would seek to revise his trial strategy in light of the settlement. Nevertheless, Judge Moritz found Dr. Phillips failed to satisfy his double burden of proving both manifest injustice and abuse of discretion, and concurred with the majority affirmance of the district court’s decision.

Colorado Supreme Court: Burden of Proof Does Not Shift Under Res Ipsa Loquitur

The Colorado Supreme Court issued its opinion in Chapman, M.D. v. Harner on Monday, December 8, 2014.

Allocation of the Burden of Proof Under Res Ipsa Loquitur.

In this case, the Supreme Court clarified the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the Court resolved the tension between its fifty-six-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the Court held that the burden of proof does not shift to the defendant under res ipsa loquitur. Accordingly, the Court reversed the court of appeals’ judgment.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Delays Caused by Plaintiff’s Counsel Justified Dismissal with Prejudice

The Colorado Court of Appeals issued its opinion in Kallas v. Spinozzi, O.D. on Thursday, December 4, 2014.

Professional Negligence—Sanctions—Motion to Strike Expert—Failure to Prosecute—Motion to Continue.

Kallas filed this action against Spinozzi, a licensed optometrist, asserting claims of professional negligence, battery, and lack of informed consent arising from a procedure Spinozzi performed on her right eye. The court granted Spinozzi’s motion to dismiss the case with prejudice for failure to prosecute. This occurred after a three-year delay; after Kallas’s attorney refused to remove himself from the case despite serious health issues; after Kallas’s attorney refused to cooperate in production of documents and refused to schedule Kallas’s expert for deposition; and after Kallas’s attorney failed to appear for numerous hearings and trial.

On appeal, Kallas contended that the trial court abused its discretion by granting Spinozzi’s motion to strike Kallas’s expert. Trial courts have broad discretion to manage the discovery process, including the ability to impose sanctions. Here, Kallas failed to cooperate in scheduling her expert’s deposition and failed to produce her expert’s file; Kallas’s discovery violation was neither substantially justified nor harmless; and Spinozzi was unfairly prejudiced by Kallas’s uncooperative conduct. For those reasons, the sanction of striking Kallas’s expert was not an abuse of discretion, even though it ultimately led to the dismissal of the case.

Kallas also contended that the trial court abused its discretion when it dismissed her claims for failure to prosecute on the day of trial. In addition to failing to schedule the expert deposition, Kallas’s attorney failed to attend a court-ordered settlement conference; failed to appear at the mandatory pretrial readiness conference; and failed to file a trial management order, witness list, exhibit list, or jury instructions. Therefore, the trial court did not err in dismissing the case.

Kallas further argued that the trial court erred in denying her motion to continue the April 15 trial. The record supports the trial court’s finding that the health problems faced by Kallas’s counsel when he moved for a continuance were foreseeable. Moreover, the issues raised in Kallas’s motion for a continuance were the same issues that the trial court predicted and proactively tried to address months before. The record also supports the trial court’s finding that Spinozzi would be substantially prejudiced by a continuance of the trial date. For these reasons, the trial court did not abuse its discretion in denying Kallas’s motion for a continuance. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error to Include Nurse in Physician Malpractice Instruction

The Colorado Court of Appeals issued its opinion in Gasteazoro v. Catholic Health Initiatives Colorado, Inc. on Thursday, October 9, 2014.

Medical Negligence—Including Nurses in Pattern Exercise of Judgment Instruction—Expert Testimony Objections.

Plaintiff arrived at the emergency room of the defendant hospital. Nurse Yeager was the first person to attend to her. Plaintiff complained of headache, nausea, dizziness, and neck pain. She had high blood pressure and low blood oxygen saturation. Defendant Dr. Overholt diagnosed a cervical sprain and ordered her discharged. Nurse Scolardi processed the discharge. Plaintiff’s blood pressure remained elevated.

Ten days later, plaintiff was found unresponsive in her home, following a hemorrhagic stroke resulting from a ruptured aneurysm in her brain. The stroke caused serious injuries.

Plaintiff alleged her treatment in the emergency room was below the standard of care in three ways: (1) Nurse Yeager did not properly triage her; (2) Dr. Overholt failed to recognize that her symptoms were consistent with an impending cerebral vascular incident (CVA) and did not order tests that would have detected a CVA or an aneurysm; and (3) given plaintiff’s unstable vital signs, Nurse Scolardi did not follow the hospital’s policies when processing her discharge. Following trial, a jury returned a verdict in favor of the hospital and Dr. Overholt.

On appeal, plaintiff argued it was error to include the words “or nurse” following every reference to “a physician” in the pattern instruction CJI-Civ. 15:4. The Court of Appeals dismissed plaintiff’s argument that a court may not depart from CJI, because CJI does not cover all possible legal principles that may be applicable in a case. In addition, the instruction at issue includes in its Notes on Use that it is “generally applicable to members of other healing arts.”

Plaintiff also argued that although no Colorado case has addressed whether a nurse should be included in a professional judgment instruction, decisions discussing why the instruction is proper for physicians weigh against giving the instruction as to nurses. The Court held that the trial court did not abuse its broad discretion by including nurses in the exercise-of-judgment instruction because: (1) the issue was unresolved in Colorado cases; (2) language in CJI-Civ. supports extending the instruction to healthcare professionals other than physicians; (3) one Colorado case and several statutes classify nurses as medical professionals; and (4) the hospital’s policy vesting nurses with the prerogative of challenging a physician’s order refers to “good clinical judgment” in carrying out “authorized physician orders.”

Plaintiff further argued that the trial court erred in overruling plaintiff’s objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine. The Court found that the neurosurgeon properly analyzed plaintiff’s presentation and history as they related to his specialty and offered opinions within that specialty. Therefore, the trial court did not abuse its discretion. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer

Colorado Supreme Court: CRE 803(4) Allows Statements to Physician for Diagnosis or Treatment of Medical Condition So Statements Properly Admitted

The Colorado Supreme Court issued its opinion in Kelly v. Haralampopoulos on Monday, June 16, 2014.

Evidence—Statements Made for Purposes of Medical Diagnosis or Treatment.

Respondent suffered a cardiac arrest during a fine-needle aspiration biopsy. He failed to respond to routine resuscitation efforts, and the resulting brain injury left him in a vegetative state. The trial court held that statements made to a physician by a family friend, asking whether respondent’s cocaine use may have contributed to his heart attack and failure to respond to resuscitation efforts, were admissible under CRE 803(4). The court of appeals reversed, finding that the trial court abused its discretion by admitting evidence of respondent’s cocaine use.

The Supreme Court held that the court of appeals erred in limiting the scope of CRE 803(4) to statements made for the purpose of prospective treatment. The Rule’s plain language applies to “diagnosis or treatment.” Although the term “treatment” has a prospective focus, the term “diagnosis” does not. Instead, diagnosis focuses on the cause of a patient’s medical condition, and may or may not involve subsequent treatment. Here, statements made by the family friend were made for the purpose of discovering the cause of respondent’s cardiac arrest and failure to react to normal resuscitation efforts, and were thus admissible under CRE 803(4). Accordingly, the court of appeals’ judgment was reversed.

Summary and full case available here.

Tenth Circuit: No Evidence that Physician’s Performance Fell Below Accepted Standard of Care

The Tenth Circuit Court of Appeals issued its opinion in Gallardo v. United States on Monday, May 19, 2014.

Ms. Gallardo brought suit against the United States under the Federal Tort Claims Act, alleging that the performance of her obstetrician, Dr. McCutcheon, fell below the standard of care during the delivery of her daughter, D.R.G., who was born with cerebral palsy.

In February 2007, Ms. Gallardo went to Memorial Hospital in Colorado Springs after complaining of reduced fetal movement and was evaluated with an electronic fetal monitor (EFM). Dr. McCutcheon, clinical director of the federally-operated Women’s Care Center at Peak Vista Community Health Center, admitted her and induced labor. The EFM readouts were used by Dr. McCutcheon to evaluate the health of the baby and determine continued course of treatment. These EFM readouts were “non-reassuring,” indicating potential fetal distress, but Ms. Gallardo ultimately delivered the baby vaginally. Ms. Gallardo asserted that Dr. McCutcheon’s actions during the labor and delivery fell below the applicable standard of care. She exhausted all administrative remedies against the Department of Health and Human Services and filed suit against the United States. The case was tried in the district court and ultimately decided in favor of the United States. Ms. Gallardo timely appealed to the Tenth Circuit on several points of error.

Ms. Gallardo asserted that the district court applied the wrong standard of care when determining that Dr. McCutcheon’s decisions were reasonable, and that the court disregarded the opinions of her two medical expert witnesses in finding for Dr. McCutcheon. However, the testimony of the four physicians described a widely variable standard of care for situations like Ms. Gallardo’s, and the district court not only relied on physician testimony but also relied heavily on guidelines issued by the American College of Obstetrics and Gynecology. Ms. Gallardo also asserted that the district court did not give enough significance to the EFM readouts, but for this claim too the district court relied on both expert testimony and the guidelines in forming its opinion.

Ms. Gallardo also argued that the district court failed to address the most significant criticisms of Dr. McCutcheon, but the record refutes her claims. Finally, Ms. Gallardo argued that the district court erred in allowing testimony regarding nomenclature adopted subsequent to D.R.G.’s birth. However, this testimony was not used in determining Dr. McCutcheon’s effectiveness, but rather to clarify language used by obstetricians regarding EFM strips.

The district court’s judgment was affirmed on all counts.

Tenth Circuit: Attorney Fee Award Appropriate Where Defendant’s Claims Frivolous and Filed in Bad Faith

The Tenth Circuit Court of Appeals issued its opinion in Cohlmia v. St. John Medical Center on Monday, April 21, 2014.

This case arose from two surgeries performed by Dr. Cohlmia, a cardiovascular and thoracic surgeon at St. John, a Tulsa hospital. The surgeries resulted in the death of one of the patients and the permanent disfigurement of the other. As a result, the hospital conducted a review, concluded that Dr. Cohlmia had failed to follow proper medical protocols, and suspended his staff privileges. St. John’s medical executive committee and its board of directors also reviewed the evidence and agreed with the decision to suspend Dr. Cohlmia.

Dr. Cohlmia sued nineteen defendants on eight causes of action. The district court dismissed five of those claims early in the proceedings. The court allowed discovery to proceed on the remaining claims, and the defendants produced over 150,000 documents. After discovery was completed, the district court granted summary judgment for St. John on the three remaining claims, and the Tenth Circuit affirmed in Cohlmia v. St. John Med. Ctr., 693 F.3d 1269 (10th Cir. 2012). St. John then sought attorney’s fees under the Health Care Quality Improvement Act of 1986 (“HCQIA”). The district court awarded $732,668 to St. John on the grounds that, under HCQIA, Dr. Cohlmia’s claims and conduct during litigation were frivolous and in bad faith. Dr. Cohlmia appealed, arguing that his claims were well founded and properly litigated. The Tenth Circuit, echoing the opinion of the district court, found that  “Cohlmia’s claims were—at best— unreasonable and without foundation and—at worst—frivolous and asserted in bad faith.”

The attorney fee award was affirmed.

Colorado Court of Appeals: Retrospective Application of Statute Abrogates Hospitals’ Credentialing Immunity

The Colorado Court of Appeals issued its decision in Hickman v. Catholic Health Initiatives on Thursday, August 29, 2013.

Immunity—Credentialing—CRS § 12-36.5-203(2)—Retroactive Application.

In this interlocutory appeal under CAR 4.2, defendant Catholic Health Initiatives, doing business as St. Anthony Hospital (hospital), appealed the trial court’s order denying the hospital’s assertion of immunity. The Court of Appeals affirmed.

In 2011, Kathleen Hickman sustained a knee injury. She sought treatment from a physician who was credentialed to practice as a vascular surgeon at the hospital. Allegedly as a result of the physician’s failure to diagnose and treat a circulatory problem, Hickman’s leg was amputated on November 18, 2011. Hickman and her husband sued the hospital and the physician on January 23, 2013 for negligent credentialing.

The hospital asserted that the current statute does not apply because the credentialing decision and injury at issue occurred before the statute’s effective date, although the action was filed after that date. Since 1989, Colorado hospitals have been statutorily immune from damages in any civil action brought against them with respect to peer review proceedings. CRS § 12-36.5-203(2) (current statute) abrogated this immunity as to credentialing decisions, effective July 1, 2012. The plain language shows that the General Assembly clearly intended the current statute to apply retroactively. Because such application is not unconstitutionally retrospective and the current statute applied to this matter, the trial court correctly rejected the hospital’s assertion of immunity.

Summary and full case available here.

Tenth Circuit: Failure to Request Special Verdicts for Factual Contentions Waived Right to Challenge Sufficiency of the Evidence

The Tenth Circuit Court of Appeals published its opinion in Pratt v. Petelin on Monday, August 19, 2013.

Jennifer Pratt sued Joseph Petelin, M.D. for medical negligence. He had operated on Pratt and allegedly removed her entire thyroid and cancerous mass but ignored her post-operative complaints of still feeling a mass in her neck and other symptoms. He refused to order a scan for her so she arranged one on her own and a different surgeon removed her cancerous lymph nodes and thyroid mass. The district court submitted four factual theories of negligence to the jury in one instruction, which returned a general verdict against Dr. Petelin in the amount of $153,000.

Dr. Petelin appealed, claiming three of the four factual contentions submitted to the jury were unsupported by sufficient evidence. Dr. Petelin did not object to the first factual contention, that he failed to remove all thyroid tissue, including a cancerous mass. The Tenth Circuit distinguished this appeal from cases cited by Petelin where a new trial was ordered because a jury may have relied on an incorrect or unsupported legal theory. Here, the jury was given one correct legal theory — medical negligence — and given four possible bases for finding Petelin liable. Because Petelin did not request a special verdict form for each factual contention, he waived his right to challenge the sufficiency of the evidence. The burden is on the appellant to request a special verdict where insufficiency of the evidence is asserted regarding some, but not all, of the factual theories in a jury instruction. To hold otherwise would be unfair to plaintiffs as a new trial could have been avoided by the defendant requesting special verdicts. The court affirmed.