July 19, 2019

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.

Tenth Circuit: $7 Million Jury Award in Medical Negligence Case Affirmed; Remittitur for Loss of Consortium Reversed

The Tenth Circuit Court of Appeals published its opinion in Prager v. Campbell County Memorial Hospital on Monday, August 12, 2013.

Appellees filed a motion to publish the order and judgment previously issued on July 2, 2013. The motion was granted. The published opinion is filed nunc pro tunc to that date.

This appeal arises from a diversity action based on a claim of medical negligence. The injured plaintiff, Louis Prager, alleged that Campbell County Memorial Hospital and its employee, Dr. Brian Cullison together, the Hospital Defendants, negligently failed to diagnose Mr. Prager’s broken neck following an automobile accident, resulting in serious nerve damage to his left arm. After a trial, the jury awarded damages to Mr. Prager. Mr. Prager’s wife, Becky, was awarded damages for loss of consortium.

The jury awarded seven million dollars to Mr. Prager and two million dollars to Ms. Prager. Displeased with the jury’s decision, the Hospital Defendants asked the district court to order a new trial or reduce the Pragers’ award of damages. The district court declined to disturb the verdict in favor of Mr. Prager but ordered Ms. Prager’s damages reduced to $500,000. The Hospital Defendants appealed, and Ms. Prager cross-appealed the district court’s remittitur of her loss-of-consortium award.

On appeal, the Hospital Defendants argued that the district court erred in (1) allowing Dr. Linscott to offer previously undisclosed opinions at trial; (2) permitting testimony that Mr. Prager had suffered a “traumatic brain injury”; (3) excluding evidence of collateral-source payments of Mr. Prager’s medical bills; (4) letting Mr. Prager testify about the amounts of his medical bills without adequate personal knowledge of their contents; (5) denying them judgment as a matter of law regarding Mr. Prager’s “speculative” damages; and (6) denying their post-trial motion for remittitur or, in the alternative, a new trial as to Mr. Prager’s $7,000,000 in damages.

First, the court found no abuse of discretion by the district court in allowing Dr. Linscott to testify about his interpretations of the radiological images of Mr. Prager’s neck. The court concluded that the trial judge’s evidentiary rulings landed within the realm of rationally available choices in the context of the litigation. Second, the district court’s pretrial order stated that the Pragers could not refer to or make claims of permanent traumatic injury of the brain. However, nobody alleged at trial that Mr. Prager had suffered a permanent brain injury. Any mention of brain injury came within the proper context of discussing whether Mr. Prager might have been experiencing the effects of a concussion or similar head trauma immediately after his accident, during which he was believed to have briefly lost consciousness.

Third, the court held that the district court correctly applied the collateral-source rule in keeping out evidence of the payments made by Wyoming Workers’ Compensation. The collateral-source rule holds that payments made to or benefits conferred on the injured party from other sources are not credited against a tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable. Fourth, the Tenth Circuit concluded that the district court did not abuse its discretion in allowing Mr. Prager to testify about his medical bills.

Fifth, there is a medical device known as a spinal-cord stimulator, which is implanted in some patients as a way of controlling chronic pain. Dr. Siegler testified that (due to the nature of Mr. Prager’s injuries and ongoing pain) it was reasonably likely that Mr. Prager would eventually be implanted with a spinal-cord stimulator as part of his medical treatment. Calling Dr. Siegler’s testimony impermissibly speculative, the Hospital Defendants moved for judgment as a matter of law. The district court denied the motion. The Tenth Circuit held that Dr. Siegler adequately conveyed to the jury—to a reasonable degree of medical probability—his professional opinion that Mr. Prager would at some point require implantation of the device.

Finally, the court lacked jurisdiction to consider Defendants’ challenge to the district court’s denial of the motion as to Mr. Prager’s damages. As to Ms. Prager’s damages, the Tenth Circuit held that the jury acted within the reasonable bounds of its wide latitude and discretion, and that the district court abused its discretion in reducing her jury award from $2,000,000 to $500,000.

The Tenth Circuit AFFIRMED the judgment in favor of Mr. Prager and REVERSED the district court’s remittitur of Ms. Prager’s damages, with instructions to reinstate the full amount of the jury’s award.

Tenth Circuit: Summary Judgment for Medical Malpractice Defendants Affirmed

The Tenth Circuit Court of Appeals published its opinion in Talavera v. Wiley on Wednesday, August 7, 2013.

Carmen Talavera suffered a stroke while visiting a store in November 2007 and incurred permanent disabilities that she attributed to the medical malpractice of personnel at the Southwest Medical Center (SWMC), where she was taken after her stroke. Talavera brought claims against a number of these medical personnel defendants under diversity jurisdiction, alleging that they should have diagnosed and immediately treated her stroke symptoms with blood-clotting therapy, or, absent that, proceeded with early surgical intervention to prevent damage caused by swelling in her brain. The district court granted summary judgment for the defendants.

The Tenth Circuit first discussed the weight to give a report submitted by Dr. Helgason, Talavera’s expert neurologist. In the report, Dr. Helgason offered opinions as to how she believed the defendants had caused Talavera’s injuries. She later qualified those opinions in her deposition. The court held that a party “cannot create a genuine dispute of material fact solely by relying on a conclusion that was written in an expert report and later qualified during that expert’s deposition. A witness’s later qualifications are the relevant ‘opinions’ for purposes of summary judgment unless there is some reason for disregarding them.”

The court then applied Kansas law to Talavera’s tort claims and affirmed summary judgment.

Colorado Court of Appeals: Emergency Room Physician Had No Vicarious Liability for Actions of Air Life Nurses

The Colorado Court of Appeals issued its opinion in Settle v. Basinger, M.D. on Thursday, February 28, 2013.

Emergency Room Physician’s Vicarious Liability—Negligent Supervision—Captain of the Ship Doctrine—Negligent Credentialing—Impeachment Evidence.

Plaintiffs William P. and Corinna Settle appealed the judgment of the trial court in favor of Janet Basinger, MD, and Rio Grande Citizens Foundation for Health Care, Inc. (Rio Grande Hospital). The judgment was affirmed.

After sustaining injuries from an ATV accident, William Settle was transported by ambulance to the Rio Grande Hospital emergency room, where Dr. Basinger was on duty. Dr. Basinger inserted a chest tube to remove air from Settle’s chest cavity before having him transported to Swedish Medical Center in Denver (Swedish). Swedish arranged for Air Life, an organization independent from the hospitals, to transport him. While Dr. Basinger was placing the chest tube, the Air Life nurses and another physician made two unsuccessful attempts to intubate Settle and then inserted a “Combitube” to stabilize him. At Swedish, lacerations to Settle’s posterior trachea and anterior and posterior esophagus caused by the Combivent tube were discovered, which later required multiple surgeries to repair.

Plaintiffs contended that the trial court erred when it denied their motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses. Plaintiffs alleged no facts, however, on which the court could have concluded that Dr. Basinger owed them a duty to supervise the Air Life nurses when they attempted the intubation. Additionally, the captain of the ship doctrine only applies to the authority of a surgeon in an operating room. It does not render an emergency room physician such as Dr. Basinger vicariously liable for negligent acts committed in the emergency room by non-hospital employees. Accordingly, the trial court did not err when it (1) denied plaintiffs’ motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses; (2) granted summary judgment in favor of Dr. Basinger on plaintiffs’ claim that Dr. Basinger failed to supervise the medical care that gave rise to Settles injuries; and (3) granted summary judgment in favor of Rio Grande Hospital on the negligent credentialing claim.

Plaintiffs further contended that the court erred when it limited cross-examination of Dr. Basinger and her expert witness and excluded other impeachment evidence. The trial court’s exclusion of the evidence was not manifestly arbitrary, unreasonable, or unfair, and there was no prejudicial error. Consequently, the court did not abuse its discretion when it granted the pretrial motions to exclude such testimony and evidence.

Plaintiffs also contended that the court erred when it did not allow them to “inquire into the fact” that another of defendants’ expert witnesses had been found guilty of unprofessional conduct, in violation of the Colorado Medical Practice Act. Defendants’ expert witness was a physician who had been convicted of driving while intoxicated and later was disciplined by the Board of Medical Examiners. However, testimony about the witness’s addiction to alcohol or narcotics was not admissible for any proper purpose in this matter.

Finally, the court did not err when it excluded portions of a witness’s deposition to remove references to insurance, excluded evidence of a letter from plaintiffs’ counsel to the witness saying it was permissible for her to meet with defense counsel, and allowed defense counsel to vouch for the credibility of a defense witness. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Convictions and Sentences Affirmed in Case Arising from Defendants’ Operation of Medical Clinic

The Tenth Circuit published its opinion in United States v. Schneider on Wednesday, January 16, 2013.

Dr. Stephen Schneider was a doctor of osteopathic medicine and his wife, Ms. Schneider, was a licensed nurse (“the Schneiders”). They owned and operated Schneider Medical Clinic in Haysville, Kansas, where they provided pain management treatment, including the prescription of controlled substances. A Kansas grand jury indicted the Schneiders. At trial, they were convicted of several counts of unlawful drug distribution, health care fraud, and money laundering arising from their operation of the Medical Clinic. The district court sentenced Dr. Schneider to 360 months’ imprisonment, and Ms. Schneider to 396 months’ imprisonment. The Schneiders appeal their convictions, alleging that (1) they were denied the right to conflict-free representation; (2) the district court erroneously admitted expert testimony; (3) the district court improperly instructed the jury; and (4) there was insufficient evidence to support the charge of health care fraud resulting in death.

(1) The Schneiders argue they were denied the right to conflict-free representation.

The Tenth Circuit held Dr. and Ms. Schneider waived all potential conflicts voluntarily, knowingly, and intelligently, based on the totality of the circumstances, following two hearings on potential conflicts.

(2) The Schneiders contend the district court erroneously admitted expert testimony.

Dr. Parran, an expert witness for the government, testified “the clinic was at fault” for illegal drug distribution. Dr. Parran also testified that, from his review of the records, the Schneiders ran a “dishonest practice.” Another expert witness for the government, Dr. Jorgensen, opined that the Schneiders’ health care fraud resulted in patients’ deaths, and that he believed the Schneiders filed fraudulent claims. The Schneiders objected to this testimony.

The rules of evidence allow an expert to opine on an “ultimate issue” to be decided by the trier of fact. Fed. R. Evid. 704(a). However, an expert may not simply tell the jury what result it should reach; he or she must explain the basis for any summary opinion. Here, the Tenth Circuit found no error in the admission of Drs. Parran and Jorgensen’s testimony. Neither doctor told the jury to reach a particular verdict, i.e., that Dr. Schneider was guilty. Rather, after explaining at great length their observations from the evidence, they summarized their findings in their testimony.

(3) Defendants allege the district court improperly instructed the jury.

The Tenth Circuit found no abuse of  discretion in the jury instructions objected to at trial, considering de novo the instructions as a whole to determine whether they accurately informed the jury of the governing law. The Tenth Circuit found no plain error in the instructions objected to for the first time on appeal.

(4) The Schneiders argue there was insufficient evidence to support the charge of health care fraud resulting in death.

After viewing the evidence in the light most favorable to the verdict to ascertain whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the Tenth Circuit held sufficient evidence supported the convictions on these counts.


Colorado Court of Appeals: Doctrine of Res Ipsa Loquitur Shifted Burden of Proof to Defendant in Negligence Case

The Colorado Court of Appeals issued its opinion in Harner v. Chapman, MD on Thursday, December 27, 2012.

Medical Malpractice—Res Ipsa Loquitur Doctrine—CRE 301.

Plaintiff Carolyn Harner appealed the judgment entered in favor of defendant Dr. James Chapman, as well as the denial of her motion for post-trial relief. The judgment was reversed and the case was remanded for a new trial.

This medical malpractice case arose out of the death of Harner’s husband, who died several hours after undergoing an angiogram performed by Chapman, a cardiologist. Harner’s principal argument was that the trial court erred in failing to instruct the jury that the res ipsa loquitur doctrine shifted to Dr. Chapman the burden of proving by a preponderance of the evidence that he was not negligent. The trial court concluded that the res ipsa loquiturdoctrine applied, but that the ultimate burden of proof remained with Harner pursuant to CRE 301. However, CRE 301 does not supersede the doctrine of res ipsa loquitur. Accordingly, the trial court erred in refusing to instruct the jury that the res ipsa loquitur doctrine shifted the burden of proof to defendant. Because the question of who had the ultimate burden of proof may well have been dispositive in this case, the error was not harmless. Therefore, the judgment was reversed and the case was remanded for a new trial.

Summary and full case available here.

Tenth Circuit: Hospital Immune Under Health Care Quality Improvement Act from Physician’s Claims; Record Insufficient to Support Physician’s Antitrust and Tort Claims

The Tenth Circuit Court of Appeals published its opinion in Cohlmia v. St. John Medical Center on Friday, September 7, 2012.

Plaintiff, Dr. George Cohlmia, a surgeon, performed two surgeries at St. John Medical Center (SJMC or hospital). One surgery resulted in death, the other in permanent disfigurement. After hospital review and formal hearing, SJMC suspended and ultimately terminated Dr. Cohlmia’s privileges. Before his initial suspension, Dr. Cohlmia explored opening a specialty heart hospital. The specialty heart hospital failed to attract any investors.

Dr. Cohlmia filed a complaint alleging violations of federal antitrust laws, violation of the Oklahoma state antitrust law, and tortious interference with a contract.

After discovery, SJMC moved for summary judgment on all claims, as well as its affirmative defense of immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The district court granted all motions for summary judgment. Dr. Cohlmia appealed.

On appeal, Dr. Cohlmia challenged the district court’s grant of HCQIA immunity.  HCQIA provides immunity to hospitals or doctors who perform peer reviews or challenges to professional conduct where patient care is at issue. The entity or persons that undertake the professional review are immune as long as they substantially comply with a list of objective standards set forth in the Act. A professional review action is presumed to have met the standards for HCQIA immunity unless the presumption of regularity is rebutted by a preponderance of the evidence. The district court concluded that no reasonable jury could find that Dr. Cohlmia had overcome the presumption. The Tenth Circuit agreed.

Having found that the hospital’s actions fell within the grant of immunity by HCQIA, the Tenth Circuit next determined the scope of that immunity. HCQIA grants immunity only against a monetary damage award. In his complaint, the doctor also sought injunctive relief and reinstatement of his staff privileges. Therefore, the Tenth Circuit was required to review the merits of the doctor’s federal and state claims.

Federal Claims

First, the doctor claimed that his exclusion from the marketplace resulted in an antitrust injury. The Tenth Circuit agreed with the district court’s assessment of the record that there was no credible evidence from which to infer an antitrust injury.

Second, the doctor argued the hospital had a sufficient market share to show monopoly power in violation of federal antitrust laws. The Tenth Circuit agreed that the hospital’s market share of less than 20% was woefully short under any metric from which to infer market power.

Dr. Cohlmia’s final federal claim alleged the hospital conspired to block his specialty heart hospital.  The Tenth Circuit found the doctor’s claims speculative at best, and agreed with the district court that granting summary judgment to the hospital was proper on this claim.

State Claims

Under the Oklahoma Antitrust Reform Act, it is unlawful for any person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or commerce in a relevant market.  Because the record did not support that the hospital had monopoly power, the doctor’s state law claim failed for the same reason his federal antitrust claim failed.

The doctor further argued the district court erred in dismissing his tortious interference with contract claims: patient contracts and insurance contracts. Since the relationship between physician and patient is at-will, there is no contract, so that claim failed. As to insurance contracts, Dr. Cohlmia failed to provide evidence of economic damages with Blue Cross/Blue Shield.  Accordingly, this claim failed as well.

Dr. Cohlmia’s finally claimed that the hospital wrongfully interfered with his medical practice. Because Dr. Cohlmia’s expert report relied on economic projections that were speculative at best, the district court did not err in concluding that state law required more evidence to support a damage award.

Based on the foregoing, the Tenth Circuit AFFIRMED the district court’s grants of summary judgment.

Colorado Court of Appeals: Hospital’s Immunity Waived Under Governmental Immunity Act, But Not for Willful and Wanton Conduct; Claims Against Doctor Should Have Been Allowed

The Colorado Court of Appeals issued its opinion in Gray v. University of Colorado Hospital Authority on July 5, 2012.

Public Entity Immunity—Public Employee Immunity—Willful and Wanton Actions.

Charles Gray died while a patient of the University of Colorado Hospital and the University of Colorado Hospital Authority (collectively, the hospital). His family brought a medical malpractice suit against the hospital and some of its employees. Defendants moved to dismiss under the Colorado Governmental Immunity Act (Act), and the trial court granted the motion. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

It was undisputed that Gray suffered from epilepsy and checked into the epilepsy monitoring unit in October 2007 so that the nature and extent of his seizures could be monitored while he was weaned from his anti-seizure medications. This required Gray to stay in the hospital for several nights. Members of his family were assured that Gray would be monitored around the clock by hospital personnel during this process. The hospital later admitted this assurance was false. On the fifth night of the patient’s stay, he was left unattended for about an hour. The patient suffered a seizure, stopped breathing, and died.

The Act provides immunity to all public entities from suit for all actions that lie in tort or that could lie in tort, unless an enumerated exception applies. One exception is applicable in this case: injuries resulting from the “operation of any public hospital.” When immunity is waived, a plaintiff’s recovery is limited to $150,000 per occurrence from one or more public entities. The hospital deposited $150,000 in the court registry and the trial court declared the claim moot.

The Court held that the statute and case law clearly provide that the hospital is immune from suit for its own willful and wanton acts or omissions, or for the willful and wanton acts or omissions of its employees. However, the hospital and the Court recognized that its sovereign immunity was nonetheless waived under the statute. That liability is capped at $150,000 and the claim against the hospital was rendered moot when it deposited that amount into the court registry to be distributed to the patient’s family.

The patient’s family also made numerous allegations against various hospital employees. The Court affirmed the dismissal by the trial court of all those claims except for the claim against Dr. Mark Spitz. Public employees have qualified immunity, not sovereign immunity. Public employees are immune from liability for “injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton.” The $150,000 cap does not apply to limit a public employee’s liability if his or her acts or omissions were willful and wanton. In this case, the facts alleged support a reasonable inference that Dr. Spitz was aware that his acts or omissions created danger or risk to the patient’s safety and that the doctor acted, or failed to act, without regard to the danger or risk. The dismissal therefore was in error and the case was remanded for proceedings against the doctor.

The Court did not find the conduct of any of the other defendants as alleged in the complaint were of sufficient specificity to support a reasonable inference that they were willful and wanton. Accordingly, the Court affirmed their dismissal.

Summary and full case available here.

Colorado Court of Appeals: Multiple Errors in Trial Court for Consolidated Workers’ Compensation/Medical Malpractice Actions

The Colorado Court of Appeals issued its opinion in Schuessler v. Wolter on May 24, 2012.

Medical Malpractice—Workers’ Compensation Benefits—Jury Instruction—Negligence—Exclusion of Expert—Fair Debatability—Economic and Noneconomic Damages—Designated Nonparty—Comparative Fault—Prejudgment Interest—Subrogation Rights.

In these bad-faith cases, defendants James Wolter, MD and Pinnacol Assurance appealed the judgments entered on jury verdicts in favor of plaintiff Michael Schuessler, who cross-appealed certain trial court rulings. The judgment against Dr. Wolter was reversed and the case was remanded for a new trial as to him. The judgment against Pinnacol was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Schuessler was injured on the job and filed a workers’ compensation claim with R. Merrill, Inc. (Merrill), his putative employer. Pinnacol, which provided workers’ compensation insurance coverage for Merrill, denied the claim. Dr. Wolter, a neurosurgeon, performed surgery on Schuessler for his injuries. The surgery caused damage to his spinal cord. Schuessler commenced a medical malpractice action against Dr. Wolter. Schuessler also filed a common law bad-faith breach of insurance contract action against Pinnacol, contending that it had wrongly denied him workers’ compensation benefits. The cases were consolidated, and a jury awarded damages to Schuessler against Pinnacol and Dr. Wolter.

On appeal, Dr. Wolter contended that the trial court erred in rejecting its proposed jury instruction, arguing that a physician does not guarantee or promise a successful outcome simply by treating or agreeing to treat a patient, and an unsuccessful outcome does not, by itself, mean the physician was negligent. Dr. Wolter’s expert specifically stated that the outcome could occur without negligence. Because the proffered instruction accurately stated the law and no other instruction informed the jury that Dr. Wolter could not be held liable merely because of a bad outcome, it was reversible error for the court to reject it.

Pinnacol asserted that the trial court erred in denying its motion for directed verdict or judgment notwithstanding the verdict. The defense of fair debatability is not in itself a complete defense to a bad-faith claim. Here, the reasonableness of Pinnacol’s conduct was disputed, and a reasonable person could reach the same conclusion as the jury. Accordingly, the trial court did not err in denying the motion.

Pinnacol also argued that the jury awarded excessive and duplicative economic and noneconomic damages to Schuessler, warranting a new trial. However, there was sufficient evidence in the record to support the award of economic damages. Additionally, there was support on record for the noneconomic damages award, and the amount awarded was not so grossly and manifestly excessive as to indicate that it was based on passion or prejudice.

Pinnacol further contended that the damages award was affected by the trial court’s erroneous failure to admit an exhibit it tendered at trial. Pinnacol’s exhibit depicted the amount and duration of its payments to Schuessler in chart form. Because the information contained in the exhibit was covered by other evidence introduced, the trial court abused its discretion in rejecting the exhibit.

Pinnacol asserted that the jury awarded duplicative damages because it awarded Schuessler the same amount of noneconomic damages that it awarded against Dr. Wolter. However, Pinnacol failed to overcome the presumptions that the jury followed the instruction not to award duplicative damages.

Pinnacol contended that the trial court erred in allowing Schuessler’s bad-faith insurance expert to testify at trial. There is no per se requirement that an expert should be excluded unless he or she has adjusted a workers’ compensation claim in Colorado, and Schuessler’s expert was otherwise qualified as an expert. Therefore, the court did not err in allowing this expert’s testimony.

Pinnacol asserted that the trial court erred in rejecting its tendered instruction concerning the liability of a designated nonparty. Pinnacol designated Merrill a nonparty at fault, but Pinnacol failed to establish that Merrill, as Schuessler’s employer, had a legal duty to Schuessler to maintain and immediately produce employment records such that a violation of that duty would give rise to a claim against it by Schuessler.

Pinnacol argued that the trial court erroneously rejected its instruction on the comparative fault of Schuessler. Pinnacol’s assertions that Schuessler was comparatively at fault because he asked for a postponement of the workers’ compensation hearing, failed to attend an appointment with a second doctor, and initially delayed several weeks before going to the doctor after the injury were insufficient to warrant an instruction.

Pinnacol asserted that the trial court’s award of costs should be reversed or reduced. The award of fees, which should be attributable only to the case against Dr. Wolter, should not be assessed against Pinnacol. The case was remanded to reverse this portion of the cost award.

Pinnacol also contended that the trial court improperly awarded prejudgment interest. Because Schuessler’s economic damages did not result from a personal injury inflicted by Pinnacol, the case was remanded for the court to properly compute the prejudgment interest on Schuessler’s economic damages based on the wrongful withholding statute, CRS § 5-12-102(1)(a).

Pinnacol argued that the trial court improperly ruled that it had waived its right to make a subrogation claim against Schuessler’s recovery from Wolter. Waiver is the intentional relinquishment of a known right. Here, Pinnacol did not waive its subrogation rights. Accordingly, on remand, Pinnacol may assert its subrogation rights.

Summary and full case available here.