July 21, 2018

Colorado Court of Appeals: District Court Abused its Discretion by Failing to Apply Three-Part Test for Excusable Neglect

The Colorado Court of Appeals issued its opinion in Taylor v. HCA-HealthONE, LLC on Thursday, March 8, 2018.

Medical Malpractice—Service—C.R.C.P. 4(m)—C.R.C.P. 60(b)—Excusable Neglect.

Plaintiff filed a medical malpractice action but failed to serve defendants within the C.R.C.P. 4(m) deadline. The district court dismissed the action without prejudice, and because the statute of limitations had run, plaintiff could not refile the lawsuit. She moved to set aside the judgment under C.R.C.P. 60(b) based on excusable neglect. Without holding a hearing, the district court concluded that counsel’s docketing errors did not amount to excusable neglect and denied the motion.

On appeal, plaintiff first argued that the district court’s dismissal order was invalid under C.R.C.P. 4(m) because the delay reduction order was premature. Although the rule requires notice before dismissal, it does not require notice after expiration of the service deadline. Thus, plaintiff was not entitled to additional notice beyond the delay reduction order and the district court’s order of dismissal was valid.

Plaintiff also argued that the court erred in failing to apply the three-factor test in Craig v. Rider, 651 P.2d 397 (Colo. 1982), in evaluating her Rule 60(b) motion to set aside the order of dismissal. That test requires the district court to consider not just whether the neglect that resulted in the order of dismissal was excusable, but also whether the plaintiff has alleged a meritorious claim and whether relief from the order would be consistent with equitable considerations. The district court abused its discretion in failing to analyze the Rule 60(b) motion under the three-part Craig test.

The order was vacated and the case was remanded to the district court to apply the Craig test.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Physician-Patient Privilege Bars Defendants from Consulting Ex Parte with Non-Party Witnesses

The Colorado Supreme Court issued its opinion in In re Bailey v. Hermacinski on Monday, March 5, 2018.

Physician-Patient Privilege—Implied Waiver.

In this original proceeding, the supreme court considered the scope of the physician-patient privilege in a medical malpractice action. Contrary to the conclusion of the trial court, the court held that plaintiffs’ non-party medical providers were not in consultation with defendants such that the typically privileged information held by those non-party medical providers was no longer protected by the physician-patient privilege. Therefore, the trial court abused its discretion when it granted defendants’ request to hold ex parte interviews with those non-party medical providers on consultation grounds. However, the court remanded the case to the trial court for consideration of whether plaintiffs impliedly waived the protection of the physician-patient privilege such that ex parte interviews may still be permitted.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Nonparty at Fault Statute Does Not Preclude Evidence of Subsequent Providers’ Negligence

The Colorado Court of Appeals issued its opinion in Danko v. Conyers, M.D. on Thursday, February 8, 2018.

Torts—Medical Malpractice—Evidence—Pro Rata Liability—Non-Party Fault—Costs.

Dr. Conyers performed carpal tunnel surgery on Danko. He did not order a post-operative biopsy to detect possible infection and ultimately released Danko from further care. Danko sought a second opinion from Dr. Scott, who performed a minor procedure on Danko’s wrist and later diagnosed her with an infection. Subsequently, Danko saw Dr. Savelli, who recommended a regimen of antibiotics and periodic surgical debridement of infected tissue. Two weeks later, Danko consulted Dr. Lindeque, who amputated Danko’s forearm. Danko filed a complaint alleging that Dr. Conyers negligently failed to detect an infection resulting from the surgery, which led to amputation of her forearm. The jury found Dr. Conyers liable and awarded damages of $1.5 million.

On appeal, Dr. Conyers challenged the trial court’s exclusion of his evidence that physicians who treated Danko after the surgery were at fault for the amputation. Dr. Conyers did not seek to apportion fault between himself and the other providers. Instead, he sought to admit evidence of their negligence as a superseding cause of Danko’s amputation. Such evidence is admissible under C.R.S. § 13-21-111.5 (the nonparty at fault statute) even if a nonparty at fault has not been designated. Thus, the part of the trial court’s ruling excluding evidence that was based on C.R.S. § 13-21-111.5(b)(3) was incorrect. But the trial court also based its ruling on Restatement (Second) of Torts § 457, which provides an exception to the liability of initial physicians for harm from subsequent physicians’ extraordinary misconduct, a superseding cause. Here, the trial court acted within its discretion in excluding evidence of the other providers’ fault, under both Restatement § 457 and CRE 403, because Dr. Conyers had not presented evidence sufficient to invoke the extraordinary misconduct exception. Further, the trial court did not err in instructing the jury consistent with this ruling.

On cross-appeal, Danko challenged the trial court’s denial of certain costs, including jury consulting expenses. Danko made a settlement offer under C.R.S. § 13-17-202(1)(a)(I), which Dr. Conyers did not accept. The verdict exceeded the amount of the offer. A party may recover jury consulting expenses when that party made a statutory settlement offer that was rejected, and did better than the offer at trial. Here, the trial court improperly denied costs for jury consulting and related travel expenses.

The judgment was affirmed. The costs award was affirmed in part and reversed in part, and the case was remanded to increase Danko’s costs award.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Balancing Test Enunciated when One Party Calls Other Party’s “May Call” Witness

The Colorado Court of Appeals issued its opinion in Sovde v. Scott, D.O. on Thursday, June 29, 2017.

Medical MalpracticeMisdiagnosisExpert WitnessesTimely EndorsementHearsay.

Sovde, a child, sued doctors Scott and Sarka by and through his mother. The lawsuit claimed that defendants had negligently misdiagnosed lesions on the child’s head as something benign instead of manifestations of the herpes simplex virus, and if defendants had timely and properly diagnosed the lesions as products of less harmful skin, eyes, and mucous membrane disease, they could have treated the child with antibiotics, which could have prevented the onset of the more harmful central nervous system disease. The jury found in defendants’ favor.

On appeal, plaintiff argued that the trial court erred when it denied his requests to use the testimony of defendants’ previously endorsed expert witnesses whom defendants had withdrawn. The trial court did not abuse its discretion when it permitted defendants to withdraw Dr. Reiley and Dr. Molteni as expert witnesses and not make them available at trial because they had previously been listed as “may call,” not “will call,” witnesses. Further, because plaintiff did not timely endorse these witnesses or timely inform the court and defendants that he would use their depositions at trial, and the record supports the trial court’s implicit decision that the testimony and depositions would have been cumulative or would have had little probative value, the trial court did not err in denying his requests. For the same reasons, the trial court properly rejected plaintiff’s motion for a new trial.

Plaintiff also argued that the trial court erred in excluding father’s telephone conversation with a licensed medical assistant in a pediatrician’s office, contending that the testimony was admissible under CRE 803(4) as statements made for purposes of medical diagnosis or treatment. Although some of father’s statements fell within the ambit of CRE 803(4) because he provided them to the medical assistant to obtain a diagnosis of and treatment for the child’s condition, plaintiff failed to show that excluding this testimony substantially influenced the basic fairness of the trial. Further, the trial court did not abuse its discretion when it denied plaintiff’s motion for a new trial on these grounds.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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.