Colorado Permanente Medical Group, P.C. v. Evans

• Decision Date: 12 November 1996
• Docket Number: No. 95SC270,95SC270
• Citation: 926 P.2d 1218
• Parties: COLORADO PERMANENTE MEDICAL GROUP, P.C.; David M. Guidot, M.D.; Joan Bodak; and Bonnie Ricke, Petitioners/Cross-Respondents, v. Susan M. EVANS, as an Individual; Susan M. Evans, as Guardian of Keith A. Evans, Melinda N. Evans and Rebecca D. Evans, Minors; and Susan M. Evans, as Representative of the Estate of Michael D. Evans, Deceased, Respondents/Cross-Petitioners.
• Court: Colorado Supreme Court

Page 1218

926 P.2d 1218

65 USLW 2399

COLORADO PERMANENTE MEDICAL GROUP, P.C.; David M. Guidot M.D.; Joan Bodak; and Bonnie Ricke Petitioners/Cross-Respondents, v. Susan M. EVANS, as an Individual; Susan M. Evans, as Guardian of Keith A. Evans, Melinda N. Evans and Rebecca D Evans, Minors; and Susan M. Evans, as Representative of the Estate of Michael D. Evans, Deceased, Respondents/Cross-Petitioners.

No. 95SC270.

Supreme Court of Colorado En Banc.

Nov. 12, 1996.

Rehearing Denied Dec. 9, 1996.

Pryor, Johnson, Montoya, Carney & Karr, P.C., Elizabeth C. Moran, Scott S. Nixon, Englewood, for Petitioners/Cross-Respondents.

FitzGerald Law Offices, Robert M. FitzGerald, Lohf, Shaiman & Jacobs, P.C., John C. Steele, Denver, for Respondents/Cross-Petitioners.

Justice KOURLIS delivered the Opinion of the Court.

Susan Evans (Evans) brought a medical malpractice and wrongful death suit arising out of the death of her husband, Michael Evans (decedent), against Kaiser Foundation Health Plan (Kaiser), ¹ Colorado Permanente Medical Group (CPMG), ² Dr. David Guidot, and several Kaiser employees. The threshold issue presented to us by certiorari ³ is whether the arbitration clause in the Kaiser Permanente Group Medical and Hospital Service Agreement (Kaiser Agreement) was unenforceable under section 13-64-403, 6A C.R.S. (1996 Supp.), of the Health Care Availability Act (HCAA). ⁴ We hold, consistent with the court of appeals decision in Evans v. Colorado Permanente Medical Group, P.C., 902 P.2d 867 (Colo.App.1995), that the HCAA does apply to the Kaiser Agreement; that the Kaiser Agreement did not comport with the requirements of section 13-64-403; and therefore that the arbitration clause was not enforceable. ⁵

As to the other two issues on which we granted certiorari, we affirm the court of appeals decision that the medical malpractice damages statute, section 13-64-302, 6A C.R.S. (1996 Supp.), limits recovery for noneconomic damages to $250,000 per patient; and, we reverse the court of appeals interpretation of the collateral source statute, section 13-21-111.6, 6A C.R.S. (1987), and remand with instructions to offset from the medical expenses award a portion of the amount that Kaiser has already paid as the decedent's health insurer.

The trial court initially ruled that the arbitration clause was not enforceable. After some discovery, the court then dismissed Kaiser from the suit on Kaiser's motion for summary judgment. The case proceeded to trial against CPMG, Dr. Guidot, and two Kaiser employees, Nurses Joan Bodak and Bonnie Ricke (collectively, the Providers). After a two-week trial, the jury rendered a verdict in favor of Evans in the amount of approximately $2,000,000 in damages. The trial court subsequently reduced the jury award pursuant to the statutory cap in section 13-64-302, 6A C.R.S. (1996 Supp.), and the collateral source rule in section 13-21-111.6, 6A C.R.S. (1987). The Providers and Evans both appealed various aspects of the judgment. The court of appeals modified the judgment by reinstating the jury award for medical expenses but otherwise affirmed. Evans, 902 P.2d at 877.

Although it was not a party to the appeal, Kaiser petitioned this court for certiorari. Evans cross-petitioned for certiorari and made a motion to strike Kaiser as an improper petitioner. We denied the motion to strike without prejudice to briefing and argument of the motion on substantive review. We now hold that Kaiser may not reenter the case for certiorari review purposes. ⁶

I.

On Sunday, January 7, 1990, the decedent went to the Kaiser East Urgent Care Clinic because he was suffering from severe flu-like symptoms. At the clinic, Nurse Bodak interviewed him and checked his vital statistics. Nurse Ricke then showed him to an examination room where he was examined by Dr. Guidot, a physician employed by CPMG. Dr. Guidot advised the decedent that he had probably pulled a stomach muscle from vomiting and that he should go home, rest, and take Tylenol. Dr. Guidot told the decedent that if he continued to suffer from the symptoms, he should return to the clinic or call the Special Care Clinic at St. Joseph Hospital. The decedent followed Dr. Guidot's instructions.

At approximately 3:00 a.m. on Monday, January 8, 1990, the decedent suffered a massive heart attack. He was taken by ambulance to Humana Hospital in Aurora. In the hospital emergency room, a team of physicians determined that the decedent was in septic shock from a pervasive bacterial infection in his stomach. Surgeons moved quickly to remove his stomach, which had necrosed. The decedent was given large doses of intravenous antibiotics and was placed in intensive care. Despite all efforts, he died later that day. His condition was subsequently diagnosed as phlegmonous gastritis, a rare stomach inflammation caused by invasive Group A streptococcus, a fast-moving, highly toxic bacteria.

At the time of his death, the decedent was 35 years old, a husband and father of three minor children, and was employed as a computer programmer. Through his employment, the decedent had health care coverage for himself and his family with Kaiser pursuant to the Kaiser Agreement which he had executed in July 1989. The Kaiser Agreement contained a clause requiring the arbitration of any claims brought by the decedent or his family against Kaiser or any "health care providers" ⁷ rendering professional services under the agreement. ⁸

Notwithstanding the arbitration clause, Evans filed suit in district court on her own behalf, as the guardian of her children, and as representative of the decedent's estate. In her complaint, Evans alleged that the Providers had negligently failed to diagnose and treat the decedent's condition. Evans further alleged that Kaiser had failed to maintain the decedent's medical records adequately and to communicate them to the defendant doctor and nurses; that Kaiser had maintained unreasonable policies and procedures for the provision of health care which led to the decedent's death; and that Kaiser had breached its contract with the decedent to provide him with health care services.

The Providers and Kaiser filed a motion to stay the district court proceeding and compel arbitration pursuant to the arbitration clause in the Kaiser Agreement. The trial court held that the arbitration clause was unenforceable because it did not comply with the format and language prescribed by section 13-64-403, 6A C.R.S. (1996 Supp.), of the HCAA.

The trial court later granted summary judgment for Kaiser on the negligence and contract claims and dismissed it from the suit. The case proceeded to trial against the Providers. After a two-week trial, the jury found for Evans, apportioning 50% fault to Dr. Guidot and CPMG, 25% to Nurse Bodak, 10% to Nurse Ricke, and 15% to the decedent. The trial court adjusted the damages award, including reducing the $1,002,176 award for noneconomic damages to $250,000 pursuant to the medical malpractice damages statute, ⁹ and reducing the award for past medical expenses by approximately $40,000, pursuant to the collateral source statute, ¹⁰ because Kaiser had previously paid those expenses as the decedent's health insurer.

On appeal, Evans claimed that the trial court had erred in granting summary judgment for Kaiser and disputed the reductions in the damages award made by the trial court. The Providers asserted in part that the trial court had erred in holding the arbitration clause unenforceable. The court of appeals affirmed the unenforceability of the arbitration clause under section 13-64-403 and the reduction of noneconomic damages under section 13-64-302, 6A C.R.S. (1996 Supp.). It also affirmed the summary judgment for Kaiser. However, the court modified the damages award for past medical expenses concluding that the trial court had erred in its application of section 13-21-111.6, 6A C.R.S. (1987), and should not have reduced the award by the approximately $40,000 that Kaiser had previously paid. Evans, 902 P.2d at 875-76.

Although it was dismissed before trial and was not a party to the appeal, Kaiser petitioned this court for certiorari. Upon cross-petitioning for certiorari, Evans made a motion to strike Kaiser as an improper petitioner. This court denied the motion, but gave Evans leave to argue the issue on appeal. Evans has raised this issue in her brief and we now address it.

II.

Evans argues that since Kaiser was neither a party at trial nor a party to the appeal in the court of appeals, Kaiser may not now interject itself into the case by petitioning for certiorari.

To the contrary, Kaiser contends that it became a party to the action in the court of appeals by virtue of Evans's cross-appeal of the order granting summary judgment and dismissing her claims against Kaiser. However, Kaiser did not file any documents with the court of appeals and was not included in the caption of the proceeding. Most critically, Kaiser did not file a petition for rehearing in the court of appeals.

Both the statute and the rule require the filing of a petition for rehearing as a condition precedent to a petition for certiorari. Section 13-4-108(1), 6A C.R.S. (1987), provides:

(1) Before application may be made for writ of certiorari, as provided in this section, application shall be made to the court of appeals for a rehearing as provided by supreme court rule.

Similarly, C.A.R. 52(b) directs that "[n]o writ of certiorari will issue unless a petition for rehearing has been filed in the court of appeals."

We have previously held that a petition for certiorari will not be entertained by this court in the absence of the prerequisite petition for rehearing. See Farmers Group, Inc. v. Williams, 805 P.2d 419, 428-29 (Colo.1991). In Farmers Group, we held that C.A.R. 52(b) requires both parties "to request a rehearing by the court of appeals on those aspects of the decision adverse to them." Farmers Group, 805 P.2d at 428-29. Neither party...