COURT OF APPEALS, STATE OF
COLORADO
Court Address: 2 East 14th Avenue
Denver, CO 80203
_______________________________________
District Court, Arapahoe County, Colorado
Honorable Charles M. Pratt, District Court Judge
Civil Action No.: 2008CV431
_______________________________________
Plaintiff/Appellant:
MICHELLE L. MEDINA
Defendants/Appellees:
KAREN K. DARRICAU, M.D.;
FORREST BRENT KEELER, M.D.
_______________________________________
Plaintiff/Appellant’s Attorney:
Douglas J. Perko, #15193
DiGiacomo, Jaggers & Perko, LLP.
5400 Ward Road, Bldg. III, Ste. 200
Arvada, CO 80002
Phone Number: (303) 420-4220
Fax Number: (303) 423-4840
Email: doug@djatlaw.com
• •COURT USE ONLY • •
_______________________
Court of Appeals Case
Number:
2009CA2243
consolidated with
2009CA2666
OPENING BRIEF
DIGIACOMO, JAGGERS & PERKO, LLP
Douglas J. Perko, #15193
Attorneys for Plaintiff/Appellant Michelle L.
Medina
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R.
32, including all formatting requirements set forth in these rules. Specifically, the
undersigned certifies that:
The brief complies with C.A.R. 28(g).
#It contains 8,930 words.
• I•t does not exceed 30 pages.
The brief complies with C.A.R. 28(k).
#For the party raising the issue:
It contains under a separate heading (1) a concise statement of the applicable
standard of appellate review with citation authority; and (2) a citation to the
precise location in the record, not to an entire document, where the issue was
raised and ruled on.
GFor
the party responding to the issue:
It contains, under a separate heading, a statement of whether such party
agrees with the opponent’s statements concerning the standard of review and
preservation for appeal, and if not, why not.
DIGIACOMO, JAGGERS & PERKO, LLP.
A duly signed original is available at the
offices of DiGiacomo, Jaggers & Perko,
LLP.
/s/Douglas J. Perko__________________
Douglas J. Perko, #15193
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.
The Trial Court erred in Granting Motion for Directed Verdict
as to Direct and Vicarious Liability Claims against Defendant
Keeler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.
The Trial Court Erred in Denying JNOV against Darricau and
Keeler on the Issues of Negligence in Leaving a Sponge inside
a Patient and Causation and in not Ordering a New Trial on the
Nature and Amount of Damages . . . . . . . . . . . . . . . . . . . . . . 21
3.
The Trial Court erred in Jury Instructions . . . . . . . . . . . . . . . 25
4.
The Trial Court erred in allowing Amendment to Answers to
add an Affirmative Defense of Release . . . . . . . . . . . . . . . . . 31
5.
The Trial Court erred in Admitting into Evidence Plaintiff’s
Settlement with Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.
The Trial Court erred in Admitting Amounts paid by Plaintiff’s
Insurer as Evidence concerning Medical Expense Damages .. 37
7.
The Trial Court erred in Awarding Costs . . . . . . . . . . . . . . . . 39
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
iii
TABLE OF AUTHORITIES
CASES
Ad Two, Inc. v. City & County of Denver, 9 P.3d 373 (Colo.2000) . . . . . . . . . . . 33
Aderhold v. Bishop, 94 Okl. 203, 221 P.2d 752 (1923) . . . . . . . . . . . . . . . . . 20, 21
Ales v. Ryan, 8 Cal.2d 82, 104-05, 64 P.2d 409, 419-20 (1936) . . . . . . . . . . . . . . 23
American Civil Liberties Union v. Whitman, 159 P.3d 707 (Colo.App.2006) . . . 32
Arnold v. Colorado State Hospital, 910 P.2d 104 (Colo.App.1995) . . . . . . . . . . 34
Beadles v. Metayka, 135 Colo. 366, 311 P.2d 711 (1957) . . . . . . . . . . . . . . . . . . 20
Benton v. Adams, 56 P.3d 81(Colo.2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Billings v. Boercker, 648 P.2d 172 (Colo.App.1982) . . . . . . . . . . . . . . . . . . . . . . 27
Branco Eastern Co. v. Leffler, 173 Colo. 428, 482 P.2d 364 (1971) . . . . . . . . . . 18
Calvaresi v. National Development Co., 772 P.2d 640 (Colo.App.1988) . . . 24, 29
Cebuzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457(1970) . . . . . . . . . . . . . 25
Clyncke v. Waneka, 157 P.3d 1073 (Colo.2007) . . . . . . . . . . . . . . . . . . . 27-29, 31
Colorado Comp. Ins. Authority v. Jones, 131 P.3d 1074 (Colo.App.2005) . . . . . 34
Conrad v. Lakewood Gen. Hospital, 67 Wash.2d 934, 410 P.2d 785 (1966) . . . . 15
Crossgrove v. Wal-Mart Stores, Inc., 2010 WL 2521744 (Colo.App 2010) . 38, 39
Cruz v. Benine, 984 P.2d 1173 (Colo.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iv
Dworak v. Olson Construction Co., 191 Colo. 161, 551 P.2d 198 (1976) . . . 34, 35
Feiger, Collision & Killmer v. Jones, 926 P.2d 1244 (Colo.1996) . . . . . . . . . . . . 33
Fields v. Yusef, 144 Cal.App.4th 1381, 51 Cal.Rptr.3d 277(2006) . . . . . . . . 23, 28
Fishman v. Kotts, 179 P.3d 232 (Colo.App.2007) . . . . . . . . . . . . . . . . . . . . . . . . 25
Gordon v. Benson, 925 P.2d 775 (Colo.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Hall v. Frankel, 190 P.3d 852 (Colo.App.2008) . . . . . . . . . . . . . . . . . 13, 22, 36, 37
Holmes v. Gamble, 655 P.2d 405 (Colo.1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Huntoon v. TCI Cablevison of Colorado, Inc., 969 P.2d 681(Colo. 1998) . . . . . . 24
Jines v. Abarbanel, 77 Cal.App.3d 702, 143 Cal.Rptr. 818, 823 (Cal.App.1978) 15
Kitto v. Gilbert, 39 Colo.App. 374, 570 P.2d 544 (1977) . . . . . . . . . . 15, 17-19, 27
Lego v. Smith, 805 P.2d 1119 (Colo.App.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 25
McLin v. Breaux, 950 So.2d 711 (La.App.2006) . . . . . . . . . . . . . . . . . . . . . . 23, 24
Meyer v. Stern, 599 F.Supp. 295 (D.Colo.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Morgan v. Brd. of Water Works, 837 P.2d 300 (Colo.App.1992) . . . . . . . . . . . . . 30
Mudd v. Dorr, 40 Colo. App. 74, 574 P.2d 97 (1977) . . . . . . . . . . . . 14-17, 26, 31
Ochoa v. Vered, 212 P.3d 963 (Colo.App.2009) . . 15-18, 22, 23, 25, 26, 28, 34-36
O’Connell v. Biomet, Inc., 2010 WL 963234 (Colo.App.2010) . . . . . . . . . . . . . 20
Prutch v. Ford Motor Co., 618 P.2d 657 (Colo.1980) . . . . . . . . . . . . . . . . . . . . . 17
v
Ravin v. Gambrell, 788 P.2d 817 (Colo.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Rudeck v. Wright, 218 Mont. 41, 709 P.2d 621 (1985) . . . . . . . . . . . . . . . . . . . . . 23
Salas v. People, 177 Colo. 264, 493 P.2d 1356 (1972) . . . . . . . . . . . . . . . . . . . . . 37
Smith v. Zufelt, 880 P.2d 1178 (Colo.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Steidinger v. Hilton, No. 07CA847 Colo.App. Aug. 8, 2008 . . . . . . . . . . . . . 38, 39
Stone’s Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo.1991) . . . . . . . . . . . 22
Summey v. Lacy, 42 Colo.App. 1, 588 P.2d 892 (1978) . . . . . . . . . . . . . . . . . . . . 33
Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916 (Alaska 2000) . . . 14, 15
Tucker v. Volunteers of America, 211 P.3d 708 (Colo.App.2008), cert. granted
2009 WL 48028 (Colo.2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Vigil v. People, 731 P.2d 713 (Colo.1987)(Lohr, J., dissenting) . . . . . . . . . . . . . 37
Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944) . . . . . . . . . . . . . . . . . . 18
Young v. Carpenter, 694 P.2d 861 (Colo.App.1984) . . . . . . . . . . . . . . . . . . . . . . 19
RULES
C.R.C.P 12(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
C.R.C.P. 59 (e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CRE 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
CRE 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
vi
CRE 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37
STATUTES
§13-21-111.6, C.R.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
§13-50.5-105(1)(a), C.R.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
OTHER
CJI-Civ.4th 9:17 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
vii
ISSUES PRESENTED FOR REVIEW
1.
Did the trial court err in granting motion for directed verdict as to
direct and vicarious liability claims against defendant Keeler?
2.
Did the trial court err in denying JNOV against both defendants
on the issues of negligence in leaving a sponge inside a patient
and causation and in not ordering a new trial on the limited issues
of the nature and amount of damages?
3.
Did the trial court err in jury instructions, including (a) failing to
instruct properly as to burden of proof where a sponge is left
inside a patient; (b) failing to instruct as to surgeons’ nondelegable duty to remove sponges from a patient; (c) failing to
instruct properly as to vicarious liability in this case; (d)
improperly instructing as to comparative negligence and non-party
fault in this case; and (e) improperly instructing as to standard of
care?
4.
Did the trial court err in allowing amendment to Answers to add
an affirmative defense of release?
5.
Did the trial court err in admitting evidence of plaintiff’s
settlement with others, and whether belated withdrawal of such
evidence from jury consideration and attempted curative
instruction were insufficient?
6.
Did the trial court err in admitting evidence of amounts paid by
plaintiff’s insurer as evidence concerning medical expense
damages?
7.
Did the trial court err in awarding defendants costs?
1
STATEMENT OF CASE AND FACTS
Plaintiff/Appellant, Michelle L. Medina (“Medina”), appeals rulings of the trial
court (“court”) granting directed verdict in favor of Defendant/Appellee, Forrest Brent
Keeler, M.D. (“Keeler”), on claims of direct and vicarious liability for professional
negligence and the judgment entered on jury verdict in favor of Defendant/Appellee,
Karen K. Darricau, M.D. (“Darricau”), on similar claims; she also appeals cost awards
to each defendant. All claims arise from a September 1, 2006, multi-procedure
surgery Keeler and Darricau performed in an operating room (“OR”) at The Medical
Center of Aurora (“TMCA”), during which a 4 in. x 4 in. x-ray detectable, surgical
sponge (“Ray-Tek”) was left inside Medina’s body at the subcutaneous tissue level
below a surgical incision (“incision 3”) made on her lower abdomen in such surgery.
(06/16/09 RT,1 87:17-19). Medina soon developed recurrent infection at incision 3,
requiring her to undergo (a) multiple, painful incision and drainage procedures at that
incision site (06/17/09 RT, 39:21-24, 56:4-14); (b) painful open-wound packing
treatments of such site (06/18/09 RT, 76:5-25, 77:1-24); (c) repeated regimens of
1
Record reference is to the CD-ROM containing the Reporters’ Transcripts
(“RT”) by date and page:line, or to the CD-ROM of the Trial Court Record (“CD”)
by CD-ROM page (“p.”), paragraph (“¶”) and Trial Exhibit (“Ex.”) number, if
applicable.
2
antibiotics; and (d) after the lost sponge had been inside her over 100 days and
became encased in a mass of inflamed subcutaneous tissue, a second surgery in
December 2006. (06/16/09 RT, 226:8-11; 06/17/09 RT, 23:6-24). In that surgery, such
mass was removed and the sponge was discovered inside it by pathology review the
next day. (06/17/09 RT, 26:15-25, 27:1-25, 28:1, 36:5-15). It was undisputed such
sponge “was definitely the cause” of Medina’s recurrent infection. (06/16/09 RT,
93:2-5; 249:9-25, 250:1-3; 06/17/09 RT, 37:7-23; 06/17/09 RT, 193:4-7; Ex. 9, CD,
p.1802).
In June 2006, Medina was referred to Keeler, a specialist in gynecologicalrelated surgery, for pelvic/abdominal pain complaints, including subcutaneous
abdominal wall masses. Keeler recommended she undergo the following procedures
in one surgery: (a) a closed, diagnostic laparoscopy procedure, with other laparoscopic
procedures as needed or sought (“closed procedures”); and (b) open, exploratory
surgery for likely removal of such masses (“open procedures”). Keeler preferred the
open procedures be performed by a general surgeon and suggested Darricau, a
specialist in general surgery. (06/16/09 RT, 19:18-25, 20:1 and 20-25, 22:5-15, 23:711). Keeler further told Medina that while he would be performing the closed
procedures, he would also be assistant surgeon in the open procedures. (06/16/09 RT,
3
26:1-5; 06/18/09 RT, 49:16-22).
Medina was under general anesthesia and unconscious for all the September 1st
surgery (06/16/09 RT, 29:5-24; 06/18/09 RT, 51:5-17), and explanation of the events
therein (including which defendant placed and left the Ray-Tek) was more accessible
to defendants than to her. Such surgery began with Keeler’s diagnostic closed
procedure; however, during the surgery and through active discussion and
determination of Keeler and Darricau while in the OR, both surgeons decided the
surgery would proceed from closed procedures, to open procedures, back to closed,
and back to open. (06/16/09 RT, 54:11-13, 55:12-18, 61:2-15, 62:3-21).
Both defendants admitted Ray-Teks were used during the open procedures and
at least one such sponge was used at incision 3, an incision made by Darricau.
(06/16/09 RT, 30:17-25, 31:5-10, 63:14-16, 64:13-23; 06/17/09 RT, 9:7-12, 11:9-25,
12:1-3, 13:18-20 ). Moreover, it was undisputed only Darricau or Keeler, as surgeons,
were responsible for and would do placement and removal of sponges in and from a
patient’s body in a surgery like Medina’s. (06/16/09 RT, 33:9-16; 208:14-22; 06/18/09
RT, 191:16-20; 06/19/09 RT, 58:10-23, 77:21-25, 78:1-18). The evidence further
showed either Darricau, as general surgeon, or Keeler, as assistant surgeon for open
procedures, could have placed and did not remove the sponge in incision 3. (06/16/09
4
RT, 33:17-20; 248:20-24). However, neither defendant could or would recall who
between them placed the subject sponge, or if any sponge was in fact placed, below
the skin at incision 3, although Darricau testified it would not have been “unexpected”
to place a Ray-Tek in the subcutaneous tissue below the skin at such incision.
(06/16/09 RT, 64:13-25, 65:1-14; 06/17/09 RT, 13:13-25, 14:1-25, 15:1-25, 16:1-25,
17:1-15).
Additionally, while Darricau closed incision 3, the evidence also
established that, while in the OR and during the course of the September 1st surgery,
both defendants jointly discussed and determined closure of incision 3 would not
involve any closing of subcutaneous tissue thereunder, i.e., the very location where
the sponge was left. (06/16/09 RT, 65:21-25, 66:1-10; 06/19/09 RT, 122:7-25, 123:117). In fact, at an office visit after the September 1st surgery, Keeler noted in his
records he “reviewed [the] decision between me [Keeler] & Dr. Darricau not to close
subcut [sic] layer” with Ms. Medina (Ex.12, CD, p.1804 (brackets added)) and
“explained our reasoning with why we chose not to close that underneath layer.”
(06/16/09 RT, 66:4-10). Further, expert testimony also established: (a) the standard
of care for surgeons as to sponges placed below a patient’s skin level requires
surgeons to remove such sponges prior to skin closure, unless there are extenuating
circumstances (none of which were present September 1st), as surgeons are responsible
5
for both placing and removing any foreign materials within a patient not intended to
be permanent; (b) this standard as to sponges was the same for surgeons specializing
in either general or gynecological-related surgery and applied to assistant surgeons,
and such standard applied to both Darricau and Keeler; (c) both Darricau and Keeler
had the opportunity to have placed the subject sponge; (d) both Darricau and Keeler
were in charge in the September 1st surgery for each procedure; (e) ordinarily, a
sponge would not be left inside a patient in open procedures like Medina’s without
surgeon negligence; (f) the above standard was not met during the September 1st
surgery and both Darricau and Keeler breached this standard; and (g) any miscount
of sponges by OR staff during the September 1st surgery would not absolve defendants
from removing sponges placed inside incision 3. (06/16/09 RT, 208:14-22, 230:7-25,
231:1-17, 234:16-18; 235:1-11, 238:11-17, 239:1-10, 244:8-15, 246:3-25, 247:1-12
and17-21, 248:4-24).
Moreover, undisputed testimony (including from defendants) established there
were no situations where surgeons would want to leave a sponge inside a patient and
complete skin closure in open procedures like Medina’s, as such a sponge would be
a foreign body endangering the patient’s health. (06/16/09 RT, 35:6-10, 39:2-12;
06/17/09 RT, 13:9-17). Nonetheless, neither defendant presented any evidence to
6
explain why, in light of the general nature or particular circumstances of Medina’s
surgery, leaving a sponge there was not surgeon negligence. Instead, Darricau and
Keeler attempted to shift responsibility to OR staff based on TMCA sponge count
policies, OR staff’s sponge count reports, and a staff miscount near the end of the
September 1st surgery. The TMCA circulating nurse for the September 1st surgery
testified he and the scrub technician for such surgery, another employee of TMCA,
performed and reported three sponge counts that day per TMCA policy. (06/16/09 RT,
88:12-25, 89:1-5; Ex.45, CD, p.1823). Additionally, he established both Darricau and
Keeler were in charge of and controlled the OR and the September 1st surgery
throughout the full time period of the surgery; he and the scrub tech would follow
directions of both Darricau and Keeler during such time period as they were the
operating surgeons that day; either Darricau or Keeler would be responsible for
removing any sponges from inside Medina before such nurse and scrub tech could
perform sponge counts done during the course of surgery; and such counts were
reported to both surgeons. (06/16/09 RT, 95:4-25, 97:3-14, 98:15-25, 99:1-18, 100:115, 101:1-11, 139:21-23, 143:1-11 and 24-25, 144:1- 6). As to the counts, such nurse
specifically recalled the baseline sponge count 1 for the Medina surgery and that ten
Ray-Teks were separately counted at count 1 and placed on the OR’s back table before
7
the surgery. (06/16/09 RT, 90:23-25, 91:1-25, 92:1-5). As to sponge counts 2 and 3
performed in the OR during the surgery, the nurse acknowledged, in light of the
retained sponge found in the December 2006 surgery, a miscount had occurred.
(06/16/09 RT, 106:4-17).
In October 2007, Medina reached a settlement with TMCA. Such settlement
was contained in (1) a written “Agreement to Settle” that resolved all her claims
against “[TMCA,] its officers, agents, employees and corporate affiliates” arising from
her care, but with express provision that Medina “does not settle or waive and
specifically reserves her right to pursue claims against other persons ... responsible for
her injuries”; and (2) a subsequent General Release as expressly contemplated in the
Agreement to Settle, whereby Medina released only “[TMCA,] its agents, servants,
employees, successors and assigns.” (Ex. 47 and Ex. M, CD, p.1844-45, ¶¶ 1and 4;
p.1872-74). Such documentation provides no express or implied settlement or release
of Medina’s claims against Darricau and Keeler. Nonetheless, more than four months
after the C.R.C.P. 16(b)(8) deadline for amendment to pleadings had passed, Darricau
and Keeler sought leave to amend their Answers to add an affirmative defense of
release based on such General Release. (Motions for Leave to Amend, CD, p.249 and
258). The court granted such leave over Medina’s opposition that such amendment
8
was futile. (Response in Opposition, CD, p.271; 04/25/09 Order, p.2124-25).
Medina continued to oppose defendants’ efforts to present before the jury a
purported release defense and the TMCA settlement documentation. Initially, she
cross-moved for partial summary judgment on such defense as the record was devoid
of any evidence such documentation contained any resolution or release of claims
against defendants and was devoid of any evidence contesting Medina’s express
reservation of claims, and as the defense’s position concerning purported release of
vicarious liability claims via the TMCA settlement was contrary to applicable law.
(CD, p.449, ¶¶ 10-11; p.512-15). The trial court initially denied such cross motion
(05/20/09 Order, CD, p.2129-2130), but then withdrew such Order and reserved ruling
on all summary judgment issues until trial (06/09/09 Order, CD, p.2138). Medina also
sought by pre-trial in limine motion to bar from evidence the TMCA settlement
documentation and the fact of such settlement. (CD, p.609; p.923). The court granted
such motion only to the extent of barring the settlement amount from being admitted.
(06/09/09 Order, CD, p.2146). At trial, the court initially determined factual issues
existed as to the settlement documentation. (06/18/09 RT, 15:10-25, 16:1). Over
continuing objection (06/18/09 RT, 236:10-16), in Medina’s cross-examination the
defense offered only the General Release, which was initially admitted (06/18/09 RT,
9
240:2); defendants were then allowed to read and highlight before the jury portions
thereof and to examine Medina extensively thereon, all the while unfairly and
inaccurately intimating that by such release Medina had released Darricau and Keeler
or was previously fully compensated. (06/18/09 RT, 244-55). Medina was then left
with the Hobson’s choice of offering the Agreement to Settle on re-direct to rebut
such contentions. (06/18/09 RT, 259:3-19, 260:1-9, 261:11-25, 262:1-19). Days later,
the court determined the TMCA settlement documentation was a question of law for
court resolution only; the court concluded such documentation provided no release,
settlement or waiver of Medina’s claims against defendants; and it withdrew Exhibits
M and 47 from jury consideration and attempted curative instruction on such matters
over objection that the “bell” could not be “unrung.” (06/22/09 RT, 3:10-17, 4:1-12,
7:5-18, 22:6-20).
As her evidence on the lost sponge could not point to a specific defendant, but
such evidence supported the reasonable inference the negligence of one of either
Darricau or Keeler caused her injuries, Medina relied on the doctrine of res ipsa
loquitur to establish a prima facie case of direct liability against both defendants.
Darricau and Keeler moved for directed verdicts as to all claims; the court deferred
rulings thereon until the close of the defense case. In denying Darricau’s motion on
10
direct liability, the court determined Medina had sufficiently satisfied the elements of
res ipsa to proceed against Darricau directly as to the lost sponge. (06/22/09 RT, 1012). However, the court then concluded without explanation that res ipsa could not
be used to establish Keeler’s direct liability, and in determining there was no evidence
an assistant surgeon who places a sponge has a duty to remove it, the court granted
directed verdict as to the Keeler direct negligence claim. (06/22/09 RT, 18:23-25,
19:1-25, 20:1-8). As to the vicarious liability claim against Keeler, the court
determined there was no evidence Keeler was “in control of the operating room during
the Incision 3 part of the surgery” and thus concluded Keeler could not be vicariously
liable under the doctrine of captain of the ship. (06/22/09 RT, 18:8-22).
A verdict returned in favor of Darricau, finding that while Medina had injuries
and damages, Darricau or another for whom she could be liable were not negligent or
a cause of such injuries and damages. (CD, p.2066). Medina timely moved under
C.R.C.P. 59 for judgment notwithstanding the verdict (“JNOV”) as to both defendants
on the issues of negligence and causation and for new trial on damages, or for new
trial due to specified trial errors. (CD, p.1209-23). Such motion was denied by
operation of C.R.C.P. 59(j). She then brought this appeal, and following Orders
awarding costs, she appealed such Orders and consolidated here all such appeals.
11
ARGUMENT
Summary
Directed verdict in favor of Keeler on direct and vicarious liability claims
was error under the law and facts; denial of JNOV against both defendants on issues
of negligence and causation was further error. This matter should be remanded for
new trial for determination of damages, or new trial on all issues, as to both
defendants. The court’s errors in jury instructions, in allowing futile amendment, and
in certain evidentiary matters would further require new trial and vacation of Orders
as to costs.
1.
The Trial Court erred in Granting Motion for Directed
Verdict as to Direct and Vicarious Liability Claims against
Defendant Keeler
A. Standard of Review
Appellate review of directed verdict rulings requires this Court to determine
whether sufficient evidence supports the trial court’s findings and requires the
conclusion that no reasonable person would conclude that any evidence, or reasonable
inferences therefrom, has been presented on which a verdict against the moving party
could be sustained, when considering all the evidence in the light most favorable to
Medina and indulging every reasonable inference in her favor. Hall v. Frankel, 190
12
P.3d 852, 862 (Colo.App.2008). When cases involve the doctrine of res ipsa loquitur,
such review includes a determination whether a plaintiff has adduced sufficient
evidence, when viewed in a light most favorable to plaintiff, to establish existence
of each element of that doctrine is more probable than not. See Holmes v. Gamble, 655
P.2d 405, 409 (Colo.1982).
I. Direct Liability
The directed verdict ruling as to Keeler’s direct liability relied on
determinations that there was no evidence an assistant surgeon has a duty to remove
sponges and that res ipsa could not apply to Keeler. While Medina contends JNOV
is proper on the direct liability claim against Keeler as discussed in Section 2 below,
she also submits the record here and controlling law are both contrary to such
determinations. Thus, at a minimum, a new trial on such direct liability claim is
required, and the trial court erred in denying Medina’s Rule 59 motion.
The evidence included testimony from Keeler himself that assistant surgeons
place sponges inside patients. Keeler also testified that it is the task and goal of a
surgeon to remove before skin closure all sponges he or she has inserted inside a
patient. (06/16/09 RT, 33:9-15, 37:23-25, 38:1-3). Equally important, the evidence
also included expert testimony that the standard of care for surgeons (whether general
13
or gynecological-related surgery specialists and whether primary or assistant) relative
to sponges placed inside a patient’s body is that a surgeon placing a sponge or other
non-permanent foreign material is responsible for removing it.2 Thus, the evidence
established the standard as to sponges would be the same for Keeler as it was for
Darricau. Moreover, the evidence showed Keeler was an active participant in
decisions made in the OR relative to the open procedures, particularly his active
participation in the decision-making process as to closure of incision 3 where the RayTek was lost. All such evidence supported Keeler’s direct negligence and would also
be consistent with authority holding the standard of care for an assistant surgeon is
determined on the facts of each case and is generally the same standard as is applied
to the primary surgeon. See Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916,
921 (Alaska 2000)(facts of each case determine standard of care for assistant surgeon;
2
The error of leaving a sponge inside a patient is of such apparent negligence
that lay persons are equally as able as experts to pass judgment thereon, and expert
testimony as to standard of care is not required in such circumstances. Mudd
v.Dorr, 40 Colo. App. 74, 76, 574 P.2d 97, 99 (1977). Thus, while expert
testimony as to the standard applicable to surgeons regarding sponges was
presented, a jury would still be able to conclude from common experience that the
sponge left inside Medina would constitute surgeon negligence without aid of
expert testimony. The court’s ruling as to Keeler’s direct liability failed to take this
factor into account, and such failure alone would require reversal of such ruling. Id.
14
assistant in that case subject to same standards of care as primary surgeon); Conrad
v. Lakewood Gen. Hospital, 67 Wash.2d 934, 938-39, 410 P.2d 785, 788 (1966)(in
retained foreign body case where plaintiff unable to show which surgeon placed and
failed to remove instrument, both chief and assistant surgeon held liable, and both
surgeons held to same standard of care to remove instruments inserted into patient’s
body); Jines v. Abarbanel, 77 Cal.App.3d 702, 711, 143 Cal.Rptr. 818, 823
(Cal.App.1978)(applying same standard of care to chief surgeon and to assistant
surgeon where assistant surgeon actively participated in decisions made in operating
room). To the extent the court’s ruling on Keeler’s direct liability relied on a lack of
evidence as to an assistant surgeon’s duty relative to removal of sponges, such ruling
was in error, and reversal of such ruling is required. See Mudd, 40 Colo. App. at 78,
574 P.2d at 101 (directed verdict for surgeon on negligence claim in lost sponge case
was reversible error).
As to application of res ipsa to Keeler, the court, relying on Ochoa v. Vered,
212 P.3d 963 (Colo.App.2009), Mudd, and Kitto v. Gilbert, 39 Colo.App. 374, 570
P.2d 544 (1977), found Medina had, at least as to Darricau’s direct liability, presented
a prima facie case for application of the doctrine. The court then, however, refused to
apply the doctrine to Keeler. The court’s ruling in this regard failed to recognize
15
particular rules this Court has applied in surgical malpractice claims involving lost
foreign bodies in patients and further failed to recognize that res ipsa is applicable in
cases involving more than one defendant.
Initially, Medina notes this Court in Ochoa, when adopting and re-affirming the
reasoning of Mudd, determined that Mudd held:
as a matter of law, that ‘when, during the course of surgery,
a foreign object such as a sponge is lost in a patient, a prima
facie case of negligence is made out under the doctrine of
res ipsa loquitur.’
Ochoa, 212 P.3d at 969 (quoting Mudd, 40 Colo.App. at 77-78, 574 P.2d at 10001)(emphasis added). Thus, as it is undisputed a sponge was lost in Medina during
surgery, and either defendant could have placed and left such sponge, Ochoa
establishes as a matter of law that she also made a prima facie case against Keeler
under res ipsa for jury determination. The directed verdict ruling on the Keeler direct
liability claim was thus reversible error, and a new trial on such claim is otherwise
required. Mudd, 40 Colo. App. at 78, 574 P.2d at 101(where evidence supported
application of res ipsa, directed verdict for surgeon was error).
Even if the court was not bound as a matter of law under Ochoa to allow
Medina’s direct liability claim against Keeler to proceed, as it determined the evidence
16
here sufficiently met all elements of the res ipsa doctrine under Ochoa, Mudd and
Kitto, such court’s refusal to apply the doctrine to both defendants was nonetheless
reversible error. A number of Colorado appellate decisions have recognized
application of res ipsa in multi-defendant cases. In the context of a surgical
malpractice case, this Court in Kitto specifically concluded it was error not to submit
a res ipsa instruction for determination of both a surgeon’s and a hospital’s
negligence. Kitto, 39 Colo.App. at 381, 570 P.2d at 549. Moreover, the Colorado
Supreme Court in Prutch v. Ford Motor Co., 618 P.2d 657 (Colo.1980), recognized
that in negligence cases with multiple defendants where the evidence supports a
reasonable inference the negligence of one of either defendants caused the injury, “the
plaintiff would be in a hopeless position if required to show which defendant was
negligent.” Id., 618 P.2d at 660, n.4. However, the Prutch court noted an escape from
such quandary was provided
by applying res ipsa loquitur to permit the plaintiff to proceed past
nonsuit. Despite the plaintiff’s lack of affirmative evidence
pointing to any particular defendant, the plaintiff, through res ipsa
loquitur, may establish a prima facie case. Each defendant, in turn,
is then required to come forth with evidence that he or she was not
in fact negligent.
Id. (citing Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 689 (1944))(emphasis
17
added). See also Branco Eastern Co. v. Leffler, 173 Colo. 428, 435-36, 482 P.2d 364,
367-68 (1971)(res ipsa properly applied to two defendants); Kitto, 39 Colo.App. at
381, 570 P.2d at 549 (when plaintiff injured in surgery is at evidentiary disadvantage
due to being anesthetized and insensible at such time and by defendants’ nondisclosure as to events leading to injury, “[t]his is precisely what res ipsa loquitur is
designed to combat.”). As Medina established application of the res ipsa doctrine
here, the court erred in not applying the doctrine to Keeler, and its directed verdict
ruling on that direct liability claim must be reversed. See Ravin v. Gambrell, 788 P.2d
817, 822 (Colo.1990)(when plaintiff introduces sufficient evidence as to res ipsa, “the
trial court must instruct the jury as to the nature and effect of that doctrine.”).
II. Vicarious Liability
Medina’s evidence also established triable issues as to Keeler’s vicarious
liability under respondeat superior principles of captain of the ship doctrine as reaffirmed by this Court in Ochoa, 212 P.3d at 966-67. In addition to showing that
assistant surgeons do place sponges inside patients during surgeries, such evidence
also showed (a) Medina was originally Keeler’s patient, and he recommended the
September 1st surgery proceed with the combined procedures, with Keeler selecting
Darricau to participate in that surgery; (b) Keeler told Medina he would perform the
18
closed procedures and would be assisting in the open procedures; (c) Keeler actively
participated in the determination during such surgery that it would proceed from
closed, to open, back to closed, and then back to open; and (d) Keeler actively
participated in the decision during surgery that closure of incision 3 would not involve
closing of the subcutaneous layers thereunder. Further, the circulating nurse testified
that for the duration of the September 1st surgery both defendants were in charge in
that OR and controlled the surgery. Such nurse further testified that during that time
period he followed the directions of both Keeler and Darricau; any sponge miscount
that occurred happened in the OR during that time period; and counts were reported
to both defendants. As a reasonable person could find vicarious liability on Keeler’s
part as an operating surgeon under such evidence, the directed verdict as to such
liability in favor of Keeler was reversible error. See Kitto, 39 Colo.App. at 382-83,
570 P.2d at 549-50 (where factual question presented as to whether operating surgeon
had assumed control, jury should be instructed on vicarious liability of surgeon as to
hospital nurse conduct); see also Young v. Carpenter, 694 P.2d 861, 863
(Colo.App.1984)(question of surgeon’s supervision and direction in operating room
for purposes of application of captain of the ship doctrine is for jury determination).
At a minimum, a new trial is required as to the vicarious liability claim against Keeler.
19
To the extent the court’s directed verdict ruling as to Keeler’s vicarious liability
was based on a consideration that there can be only one “captain” in an operating
room, Colorado law does not support, but in fact rejects, any such contention. In
adopting for the first time the vicarious liability principles at issue in this case, the
Colorado Supreme Court in Beadles v. Metayka, 135 Colo. 366, 311 P.2d 711 (1957),
relied upon and quoted extensively from the decision in Aderhold v. Bishop, 94 Okl.
203, 221 P.2d 752 (1923), as follows:
‘The patient is helpless under the influence of an anesthetic, and
absolutely at the mercy of the surgeons performing the operation,
and they are charged with the duty to see that no preventable
injury results to their patient. Under the modern science of surgery
a surgical operation, with modern hospital appointments, is a
complex enterprise. Necessarily the various agencies that enter
into it must be performed by different individuals, under the active
supervision and direction of the operating surgeons in charge. If
the operating surgeons were not made liable for the negligent
performance of the duties of those working under them, the law in
a large measure would fail in affording a means of redress for
preventable injuries sustained from surgical operations.’
Beadles, 135 Colo. at 370-71, 311 P.2d at 713-14 (quoting Aderhold, 94 Okl. at 207,
221 P.2d at 755)(emphasis added); see also O’Connell v. Biomet, Inc., 2010 WL
963234 p.6 (Colo.App.2010)(noting Beadles as the seminal captain of the ship case
in Colorado and also quoting extensively from the above excerpt from Aderhold ). In
20
Aderhold, the plaintiff proceeded against both the lead and assistant surgeon under a
sole theory of their vicarious liability for the negligent acts of hospital OR nurses
causing injury during the surgery. The Aderhold court concluded that a motion for
directed verdict by both surgeons was properly denied, and it affirmed the judgment
as to both defendants with modification for remittitur. Aderhold, 94 Okl. 203, 221
P.2d at 756-57. As Colorado law provides for vicarious liability of “operating
surgeons” for the negligence of OR staff during a surgery, and there is more than
ample evidence that Keeler was an operating surgeon who had assumed control and
was an active participant during the full course of the September 1st surgery, any
contention that there cannot be multiple operating surgeons for purposes of vicarious
liability should be rejected.
2.
The Trial Court Erred in Denying JNOV against Darricau
and Keeler on the Issues of Negligence in Leaving a Sponge
inside a Patient and Causation and in not Ordering a New
Trial on the Nature and Amount of Damages
A. Standard of Review
Appellate review of JNOV motions is similar to the review of motions for
directed verdict, Hall, 190 P.3d at 862, in that JNOV motions should be granted if the
evidence, viewed in a light most favorable to the non-moving party, is such that no
21
reasonable person could reach the same conclusion as the jury, id.
I. Negligence as to Retained Sponge
Under the undisputed facts, it was incumbent upon both Darricau and Keeler
to sustain respective burdens of proof that he or she was not negligent as to the lost
sponge. Ochoa, 212 p.3d at 969-70 (in retained sponge case and under res ipsa,
burden properly shifts to surgeon to disprove negligence with regard to retained
sponge); see Stone’s Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 n.10
(Colo.1991)(res ipsa “requires the defendant to prove by a preponderance of the
evidence that he was not negligent”). Nonetheless, neither defendant established how
the sponge left inside Medina during the September 1st surgery (a relatively brief
surgery wherein no emergencies arose) was not surgeon negligence.
Instead, defendants presented evidence of hospital sponge count policies and
surgeon reliance on OR staff’s sponge counts in an effort to shift blame to such staff.
Such evidence was, however, wholly insufficient to discharge defendants’ above
burden. Ochoa determined that surgeons have a non-delegable duty to remove
sponges in the first instance, and “‘a surgeon cannot delegate responsibility for
removing sponges from a patient’s body,’” Ochoa, 212 P.3d at 969 (quoting Fields
v. Yusef, 144 Cal.App.4th 1381, 1391, 51 Cal.Rptr.3d 277, 284 (Cal.Ct.App.2006)).
22
The Fields case aptly notes that due to such a duty, “[t]he surgeon defending a
retained sponge case must therefore offer something more than expert testimony that
the standard of care was met because surgeons rely on nurses to count sponges”;
rather, such defendant “must demonstrate his or her failure to detect the retained
object is reasonable under the facts and circumstances of the particular case.” Fields,
144 Cal.App.4th at 1395, 51 Cal.Rptr.3d at 287. The insufficiency of the defense’s
evidence here has been uniformly recognized in cases from other jurisdictions that,
like Ochoa, have determined a surgeon’s responsibility to remove sponges is nondelegable. See, e.g., Ales v. Ryan, 8 Cal.2d 82, 104-05, 64 P.2d 409, 419-20
(1936)(surgeon has non-delegable duty that sponges are removed before incision is
closed; surgeon cannot be relieved of liability by custom or rule requiring nurses to
count sponges); McLin v. Breaux, 950 So.2d 711, 719 (La.App.2006) (surgeon’s nondelegable duty to remove sponges cannot be avoided by reliance on or delegation to
nurses who perform counts; JNOV properly granted in favor of plaintiff); Rudeck v.
Wright, 218 Mont. 41, 51, 709 P.2d 621, 627-28 (1985)(negligence of nurses in
sponge count does not protect surgeon from liability for not removing sponge in first
instance; evidence of acts or omissions of nurses was irrelevant on issue of whether
surgeon’s negligence caused injury in retained sponge case). As the defense’s
23
evidence in this regard was insufficient as a matter of law to meet defendants’ above
burden, JNOV in favor of Medina on this issue as to both defendants would be proper.
See McLin, 950 So.2d at 719; C.R.C.P. 59(e)(1); cf. Huntoon v. TCI Cablevison of
Colorado, Inc., 969 P.2d 681, 687-88 (Colo. 1998) (directed verdict properly granted
in favor of plaintiff on negligence liability issue due to legal presumption against
defendant and insufficient evidence to counteract presumption); Calvaresi v. National
Development Co., 772 P.2d 640, 644 (Colo.App.1988) (JNOV properly granted to set
aside comparative negligence finding where evidence thereon was insufficient to
create jury issue). Denial of Medina’s JNOV motion as to this issue should be
reversed, with direction for a new trial against both defendants on the limited issues
of the nature and amount of damages.
II. Causation
The uncontradicted evidence here also established the sponge left inside Medina
was definitely the cause of her infection. Thus, no reasonable person could reach the
same conclusion the jury did here on the issue of causation, and as there was no
factual dispute on the causation element of her negligence claims, Medina would be
entitled to judgment thereon as a matter of law. JNOV in favor of Ms. Medina on this
issue as to both defendants would thus also be proper. See C.R.C.P. 59 (e)(2); Cebuzz,
24
Inc. v. Sniderman, 171 Colo. 246, 252-53, 466 P.2d 457, 460 (1970)(where evidence
is undisputed, reasonable minds can draw only one inference therefrom, and causation
issue established as a matter of law, directed verdict in favor of plaintiff on such issue
is proper); Lego v. Smith, 805 P.2d 1119, 1124 (Colo.App.1990)(when there is no
conflicting evidence on question of causation, it is a matter of law for the court).
Denial of Medina’s JNOV motion as to this issue should be reversed, with direction
for a new trial as to both defendants on the limited issues of the nature and amount of
damages.
3.
The Trial Court erred in Jury Instructions
A. Standard of Review
While a trial court’s decision to give a particular instruction is reviewed on an
abuse of discretion standard, appellate courts further review jury instructions de novo
to determine whether as a whole they accurately inform a jury of the governing law.
Ochoa, 212 P.3d at 966; Fishman v. Kotts, 179 P.3d 232, 237 (Colo.App.2007).
Record reference as to Medina’s challenges to instructional errors are specified below.
25
I. The Trial Court erred Regarding Burden of Proof Instructions
As required as matter of law by Ochoa and Mudd, Darricau was charged with
a burden of proof to show leaving of the sponge was not negligence on her part, or
with “a burden of disproving negligence” in this regard. Ochoa, 226 P.3d at 969.
Such instruction would have been accomplished under Plaintiff’s rejected instruction
1, by informing the jury in relevant part that “Darricau has the burden of disproving
the plaintiff’s claim that ... Darricau was negligent in leaving the sponge ... by a
preponderance of the evidence.” (CD, p.1991; 06/22/09 RT, 66:13-22). Instead, the
jury was told by Instruction no. 3 Medina had “the burden of proving her claims ....”
(CD, p.2008). Medina objected to such instruction as it failed to account for
Darricau’s above burden of proof and as it injected confusion as to the burdens in the
case. (06/22/09 RT, 33:13-14, 34:4-25, 35:1-4). Morever, Medina also objected to
Instruction no.10, a res ipsa instruction as drafted by the court (CD, p.2013), as such
instruction’s two final paragraphs contained contradictory language as to whether the
presumption of negligence arising from the retained sponge shifted a burden of proof
to Darricau, or whether, and contrary to Ochoa’s requirement as to a surgeon’s burden
of proof in a lost sponge case, the presumption simply shifted a burden of production
or was simply evidence as to whether or not Darricau was negligent. (06/22/09 RT,
26
75:25, 76:1-25, 77:1-14). See CJI-Civ.4th 9:17 (2009), Notes on Use 2 and 3
(indicating last two paragraphs of court’s Instruction no. 10 are mutually exclusive
alternatives). Instruction nos. 3 and 10 failed to properly instruct the jury as to the
applicable law and would mislead or confuse a jury on the allocation of burden of
proof in this case, and Medina was prejudiced as a jury may have answered differently
if proper instruction thereon had been given. Compounding these errors was
Instruction no. 19, a modified “unsuccessful outcome” instruction (CD, p.2022), to
which Medina objected as being inconsistent with application of res ipsa and with the
defense’s burden of proof. (06/22/09 RT, 50:25, 51:1-15). Cf. Kitto, 39 Colo.App. at
384, 570 P.2d at 551 (non-presumption, lamentable result or like instruction should
not be given in res ipsa case). Whether viewing such instructions singly or
collectively, a new trial on such grounds is required. Billings v. Boercker, 648 P.2d
172, 173 (Colo.App.1982)(where instructions could lead to jury confusion and
mislead as to allocation of burden of proof, reversal and new trial required); see
Clyncke v. Waneka, 157 P.3d 1073, 1079 (Colo.2007) (jury instructions must contain
correct statement of law, and new trial must be ordered when result of trial may have
been different if proper instruction had been given).
27
II. The Trial Court erred in not Instructing on a Surgeon’s Non-Delegable
Duty to Remove Sponges from a Patient
As discussed above, this Court in Ochoa concluded that surgeons cannot
delegate responsibility for removing sponges from a patient’s body. Ochoa, 212 P.3d
at 969. Medina’s rejected instruction 5 (CD, p.1995; 06/22/09 RT, 65:6-25, 66:1-4)
would have informed the jury of this applicable rule of law. The failure to so instruct
a jury has been held to be prejudicial error. Fields, 144 Cal.App.4th at1395, 51
Cal.Rptr.3d. at 287. Without such instruction, a jury could well believe surgeons can
shift responsibility away from themselves or defeat their liability in the first instance
altogether by reliance on sponge count policies or practices or other insufficient
matters. Id. As the result here may have been different if the jury had been properly
instructed as to this non-delegable responsibility, a new trial is required. See Clyncke,
157 P.3d at 1079.
III. The Trial Court Failed to Instruct Properly as to Vicarious Liability
Medina’s rejected instruction 4 as to captain of the ship/vicarious liability was
not conditioned on a fact determination of assumption of control, as defendants’
control of the subject surgery had been undisputably established. (CD, p.1994;
06/22/09 RT, 44:19-25, 45:1-14). By Instruction no. 13 (CD, p.2016), the jury was
28
instructed that if it found Darricau had assumed control in the OR, then acts or
omissions of the OR staff were the acts or omission of such defendant. As the
uncontradicted evidence had established assumption of control, that issue was not
properly a jury matter and such instruction was in error. See Clyncke, 157 P.3d at
1079; see also Calvaresi, 772 P.2d at 644. Moreover, Instruction no. 14 (CD,
p.2017), which unnecessarily discussed and spotlighted non-responsibility for hospital
staff’s acts or omissions when Darricau was not in control of the OR (06/22/09 TR,
74:9-15), only served to mislead or confuse the jury as to whether the undisputed
assumption of control had been established. Magnifying these errors was Instruction
no. 22 (CD, p.2025), with its reference to Instruction no. 13, its unsupported
affirmative defense as to nonparty TMCA, and its confusing attempt to distinguish
what negligence by TMCA employees could be considered for the purpose of such
affirmative defense and what negligence could not be so considered. Such
instructions, singly or collectively, did not properly instruct the jury on the law of
captain of the ship/vicarious liability under the evidence of this case, and they likely
misled or confused the jury. As the result here may have been different had the jury
been properly instructed, a new trial would be required on these instructional errors.
See Clyncke, 157 P.3d at 1079.
29
IV. The Trial Court erred in Submitting Instruction to the Jury
on Affirmative Defenses of Comparative and Non-Party Negligence
When the evidence does not support an asserted defense, that issue should not
be submitted to the jury, and it is error to instruct on such matter. See Morgan v. Brd.
of Water Works, 837 P.2d 300, 304 (Colo.App.1992); see also Gordon v. Benson, 925
P.2d 775, 778 (Colo.1996)(reversible error occurs when comparative negligence
defense submitted to jury where no evidence supports it). As to the defense of
comparative negligence, there was no evidence Medina in any way contributed to the
sponge being left inside her during the September 1st surgery. (06/22/09 RT, 51:2125, 52:1-6). Similarly, as to the fault of non-party TMCA, the defense presented no
evidence that TMCA, either through improper adoption or implementation of sponge
count policies or by other acts or omissions occurring outside the subject September
1st OR, was negligent or a cause of injury in these circumstances. (06/22/09 RT, 54:219). In fact, the court noted in its directed verdict rulings that “there was no evidence
the incorrect sponge count was a result of poor or negligent training by [TMCA].”
(06/22/09 RT, 15:14-16). Instruction on both these purported defenses can, however,
improperly lead a jury to conclude these matters provide some support to the notion
that the surgeons’ failure to comply with the non-delegable responsibility to remove
30
sponges was not surgeon negligence in this case. Instruction nos. 20, 21 and 22 (CD,
p.2023-25) improperly submitted such defenses to the jury, and a new trial is required
due to such error. See Clyncke, 157 P.3d at 1079.
V. The Trial Court erred in Instructing the Jury that Expert Testimony
was the Sole Guide as to Standard of Care
Over Medina’s objection that any such instruction was unneeded and
inappropriate (06/22/09 RT, 50:14-23), the court by Instruction no. 18 (CD, p.2021)
informed the jury it must be guided solely by expert testimony as to standard of care.
As to the issue of removal of sponges during surgery, this instruction was an incorrect
statement of law, as a jury can conclude the leaving of a sponge inside a patient
constitutes surgeon negligence and a breach of standard of care without aid of expert
testimony. See Mudd, 40 Colo. App. at 76, 574 P.2d at 99. As such an inaccurate
instruction limits or usurps a jury’s function, and it could likely confuse or mislead,
a new trial would be required due to such error. See Clyncke, 157 P.3d at 1079.
4.
The Trial Court erred in allowing Amendment to Answers to
add an Affirmative Defense of Release
A. Standard of Review
Leave to amend pleadings is generally within the discretion of a trial court and
is subject to an abuse of discretion standard on appellate review. However, when leave
31
to amend presents the issue of futility of amendment, such issue is a question of law
subject to de novo review. See Benton v. Adams, 56 P.3d 81, 85 (Colo.2002);
American Civil Liberties Union v. Whitman, 159 P.3d 707, 713 (Colo.App.2006).
I. The Purported Release Defense was Futile
Amendment to pleadings is futile if, for example, it fails to state a cognizable
legal theory, such that it could not withstand a motion to dismiss under C.R.C.P.
12(b)(5) (in the case of an affirmative claim for relief) or a motion to strike under
C.R.C.P. 12(f) (in the case of an asserted defense). See Benton, 56 P.3d at 87;
Whitman, 159 P.3d at 712-13; see also C.R.C.P 12(f) (“objection that a responsive
pleading or separate defense therein fails to state a legal defense may be raised by
motion filed under this section (f)”). In this case, there was never a factual dispute that
neither the Agreement to Settle nor the General Release provides any express or
32
implied settlement or release of Medina’s claims against Darricau or Keeler.3 To the
extent Darricau and Keeler could be viewed as joint tortfeasors with TMCA and its
staff due to Medina’s pursuit of direct liability claims against Darricau and Keeler,
§13-50.5-105(1)(a), C.R.S., rendered Darricau’s and Keeler’s purported release
defense based on Medina’s settlement with TMCA futile. See Summey v. Lacy, 42
Colo.App. 1, 3, 588 P.2d 892, 893-94 (1978); see also Cruz v. Benine, 984 P.2d 1173,
1179 (Colo. 1999) (under §13-50.5-105(1)(a), settlement of claims against one set of
joint tortfeasors did not act as release of and bar against claims against second set of
joint tortfeasors, as settlement documents with first tortfeasors provided for no
discharge of liability as to second set of tortfeasors).
3
Defendants’ response to Medina’s Cross-Motion for Summary Judgment on
the release defense provided no factual record supporting such defense (CD,
p.481), and interpretation of the TMCA settlement documentation was, at all times
in this case, a question of law for the trial court. See Ad Two, Inc. v. City and
County of Denver, 9 P.3d 373, 376 (Colo. 2000). However, it was only long after
the improper admission of the settlement evidence that the court (based on
agreement by the defense near the end of trial that no factual disputes existed as to
the settlement documentation) concluded the interpretation of the settlement
documentation was one of law for the court. (06/22/09 RT, 3:10-17). While
Medina is mindful that the propriety of summary judgment denial after trial on the
merits is not appealable, see Feiger, Collison & Killmer v. Jones, 926 P.2d 1244,
1250 (Colo.1996), she did preserve a motion for directed verdict as to the release
defense issue (06/22/09 RT, 20:21-25). Thus, the court’s erroneous ruling as to the
release defense vis-a-vis Medina’s cross-motion for summary judgment thereon is
also subject to review on this appeal.
33
Moreover, as to any contention that Medina’s settlement with TMCA worked
an implied release of her vicarious liability claims against Darricau and Keeler, such
contention was specifically rejected by this Court in Ochoa, and defendants’ purported
release defense would, again, be futile as a matter of law. In rejecting the argument
that release of nurses also released a surgeon vicariously liable for such nurses’ OR
conduct under captain of the ship, the Ochoa court relied principally on Dworak v.
Olson Construction Co., 191 Colo. 161, 551 P.2d 198 (1976), and Colorado
Compensation Insurance Authority v. Jones, 131 P.3d 1074 (Colo.App.2005). The
Ochoa court stated that in Dworak, “the supreme court held that plaintiffs ‘who
execute a covenant not to sue an employee may nevertheless ‘sue an employer on the
theory of [r]espondeat superior’ despite ‘the absence of an express reservation of the
right to do so.’” Ochoa, 212 P.3d at 968 (quoting Dworak, 191 P.2d at 164, 551 P.2d
at 220)(brackets in original). Ochoa further states the Jones decision held that
respondeat superior claims against an employer were not precluded because all claims
the plaintiff had against the employee had been dismissed under a settlement in which
the plaintiff reserved claims against other tortfeasors. Id. Ochoa also notes that the
Jones decision distinguished Arnold v. Colorado State Hospital, 910 P.2d 104
(Colo.App.1995), as in Arnold the employee there was absolved of liability by jury
34
determination, such that there would be no basis to hold a superior vicariously liable.
Id. Finally, the Ochoa court noted there was no distinction between a release and a
covenant not to sue for purposes of preserving respondeat superior claims, and stated
“‘[a] release with express provisions reserving the right to sue other tort-feasors will
be given the effect intended by the parties.’” Id. (quoting Meyer v. Stern, 599 F.Supp.
295, 297 (D.Colo.1984)). As both Dworak and Ochoa recognize that settlement
documentation with an actor whose conduct can be imputed to others under principles
of respondeat superior does not require express reservation of a right for a plaintiff
to preserve and pursue such respondeat superior claims, and given the undisputed fact
here Medina in the TMCA settlement documentation “specifically reserves her right
to pursue claims against other persons ... responsible for her injuries,” the futility of
defendants’ amendment was patent. The court’s Order allowing such amendment was
erroneous as matter of law. Medina was prejudiced by such amendment, and such
Order should be reversed.
5.
The Trial Court erred in Admitting Evidence of Plaintiff’s
Settlement with Others
A. Standard of Review
A trial court’s rulings regarding the admissibility of evidence is reviewed under
35
an abuse of discretion standard. Hall, 190 P.3d at 858. Relevant record references to
Medina’s challenges to the subject evidence below are at CD, p.609-13, p.923-25,
p.2146; and 06/18/09 RT, 236:10-16.
I. The Trial Court committed Prejudicial Error in Admitting Evidence
of the TMCA Settlement, and such Error was not Cured by Later
Withdrawal of such Evidence and Attempted Curative Instruction
By in limine motion and at trial, Medina sought to exclude all evidence of the
TMCA settlement as irrelevant under CRE 401and 402 and as prejudicial under CRE
403. As Darricau and Keeler would be fully liable for any conduct of the OR staff
imputed to them under the respondeat superior principles of captain of the ship, and
such liability could not be reduced by any fault apportioned to that staff, see Ochoa,
212 P.3d at 972; as the Colorado Supreme Court in Smith v. Zufelt, 880 P.2d 1178
(Colo.1994), noted that in cases involving pending trial claims against tortfeasors
where others had previously settled with the claimant, “the terms of the settlement
agreement should be of no consequence,” id., 880 P.2d at 1187; and as the TMCA
settlement evidence was wholly immaterial to a purported release defense, the court
committed prejudicial error in initially admitting such evidence. Moreover, such
evidence could only have led to unfair prejudice and jury confusion as it was
presented with the implication Medina’s pursuit of her claims against the surgeons
36
was barred or was avaricious and wrong. Such evidence should have thus also been
excluded under CRE 403.
Further, the court’s attempted curative instruction, more than three days after
the prolonged presentation, questions and comments on such evidence before the
jury, could not eradicate the improper influence and prejudicial suggestion from such
prolonged presentation. See Vigil v. People, 731 P.2d 713, 719 (Colo.1987)(Lohr,
J., dissenting)(where stricken evidence is extensive, curative instruction long after its
presentation would be insufficient to ensure lack of prejudice, and new trial should be
held); see also Salas v. People, 177 Colo. 264, 266, 493 P.2d 1356 (1972)(prejudicial
inference from improperly presented evidence would not afford a fair trial and could
not be cured by instruction). As this evidentiary error provided a basis for new trial,
denial of Medina’s Rule 59 motion was improper. Reversal of such denial, with
remand for new trial, would be required.
6.
The Trial Court erred in Admitting Amounts Paid by
Plaintiff’s Insurer as Evidence concerning Medical Expense
Damages
A. Standard of Review
A trial court’s rulings regarding the admissibility of evidence is reviewed under
an abuse of discretion standard. Hall, 190 P.3d at 858. An abuse of discretion occurs
37
if a district court bases such rulings on an erroneous view of the law. Crossgrove v.
Wal-Mart Stores, Inc., 2010 WL 2521744, p.2 (Colo.App 2010). Relevant record
reference to Medina’s challenges to the subject evidence below are at CD, p.581 and
p.2175-77.
I. Admission of “Amounts Paid” was Reversible Error
By pre-trial in limine motion, Medina sought to bar irrelevant evidence of
amounts paid for her medical charges relative to her measure of damages as to such
charges. The court disagreed, and while the fact that such payments were made by
Medina’s health insurer was not allowed, the court determined evidence on Medina’s
treatment expense damages “could include evidence of both the amount initially billed
by the medical providers and the amount actually paid by Plaintiff’s insurance
provider.” (CD, p.2176). This ruling was prejudicial error, and on remand for new trial
this Court should direct the subject evidence be excluded.
Other panels of this Court have reviewed evidentiary or related issues
concerning the treatment in tort cases of “amounts paid” by health insurers as to
medical damages. See Crossgrove, p.1 (trial court erroneously admitted collateral
source payments by insurer on question of measure of medical expense damages);
Steidinger v. Hilton, No. 07CA847 p.8 Colo.App. Aug. 8, 2008)(NSOP)(trial court did
38
not err in excluding as irrelevant evidence of amount paid by insurer on tort claimant’s
medical charges); see also Tucker v. Volunteers of America, 211 P.3d 708, 713
(Colo.App.2008), cert. granted 2009 WL 48028 (Colo.2009)(trial court erred under
§13-21-111.6, C.R.S., in reducing medical damage award by amount of insurerobtained discounts to medical charges). This Court should follow the well-reasoned
holdings of Crossgrove, Tucker and Steidinger in directing that evidence of amounts
paid by an insurer here be barred on a new trial.
7.
The Trial Court erred in Awarding Costs
Because Medina’s motion for JNOV or for new trial should have been granted,
the court’s Orders awarding defendants costs should be reversed on this appeal.
CONCLUSION
For the foregoing reasons and authorities, Michelle L. Medina respectfully
requests this Court reverse and set aside the directed verdicts and judgments enter for
defendants; this Court remand this matter to the trial court for entry of judgment in her
favor on the issues of negligence and causation and for new trial on the limited issues
of the nature and amount of damages, or remand this matter for new trial on all issues,
against both defendants; and reverse and set aside the trial court’s Orders awarding
costs to defendants.
39
Respectfully submitted:
DIGIACOMO, JAGGERS & PERKO, LLP.
A duly signed original is available at the
offices of DiGiacomo, Jaggers & Perko,
LLP.
/s/Douglas J. Perko
Douglas J. Perko, #15193
40
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the above and foregoing
OPENING BRIEF via LexisNexis file and serve, addressed to the following:
Deanne McClung
COOPER &CLOUGH, P.C.
1512 Larimer Street, Ste. 600
Denver, CO 80202
Attorneys for Defendant/Appellee
Karen K. Darricau, M.D. for
Case nos. 09CA2243 and 09CA2666
John R. Mann
KENNEDY, CHILDS & FOGG, P.C.
1050 17th Street, Ste. 2500
Denver, Colorado 80265
Attorneys for Defendant/Appellee
Forrest Brent Keeler, M.D. for
Case nos. 09CA2243 and 09CA2666
this 30th day of August 2010.
A duly signed original is available at the
offices of DiGiacomo, Jaggers & Perko,
LLP.
/s/Kathy Weyer
41