Day v. Johnson

• Decision Date: 31 May 2011
• Docket Number: No. 09SC879.,09SC879.
• Citation: 255 P.3d 1064
• Parties: Richard C. DAY and Loretta Jean Day, Petitionersv.Bruce JOHNSON, M.D., Respondent.
• Court: Colorado Supreme Court

255 P.3d 1064

Richard C. DAY and Loretta Jean Day, Petitioners

v.Bruce JOHNSON, M.D., Respondent.

No. 09SC879.

Supreme Court of Colorado, En Banc.

May 31, 2011.

Law Office of Michael Goodman, PC, Michael Goodman, Englewood, Colorado, Attorneys for Petitioners.Kennedy, Childs & Fogg, P.C., Barbara H. Glogiewicz, Christopher K. Miller, Denver, Colorado, Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, Attorneys for Respondent.Cross & Bennett, LLC, Joseph F. Bennett, Colorado Springs, Colorado, Schoenwald & Thompson LLC, Julia T. Thompson, Denver, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.Campbell, Latiolais & Ruebel, P.C., Jeffrey Clay Ruebel, Denver, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.Davis Graham & Stubbs LLP, Andrew M. Low, Geoffrey C. Klingsporn, Denver, Colorado, Attorneys for Amicus Curiae HealthOne Clinic Services, Inc.Hershey Skinner, LLC, Kari M. Hershey, Littleton, Colorado, Attorneys for Amicus Curiae Colorado Medical Society and Colorado Chapter of the American Congress of Obstetricians and Gynecologists.Office of University Counsel, Patrick T. O'Rourke, Denver, Colorado, Attorneys for Amicus Curiae the Regents of the University of Colorado.Justice RICE delivered the Opinion of the Court.

We granted certiorari in this medical malpractice case to review whether the “unsuccessful outcome/exercise of judgment” jury instruction patterned after Colorado Jury Instruction–Civil 15:4 (2009) is an accurate statement of the law in Colorado. The court of appeals held that the instruction accurately reflects Colorado medical malpractice law and, accordingly, that the trial court did not err in so instructing the jury. Day v. Johnson, 232 P.3d 175, 182 (Colo.App.2009). We affirm.

I. Facts and Proceedings Below

Loretta Jean Day was diagnosed with hypothyroidism and a nodule on the left lobe of her thyroid gland. After treatment with medication and a series of ultrasounds, Ms. Day was referred to Dr. Bruce Johnson, a general surgeon, for evaluation and treatment. Dr. Johnson advised Ms. Day that she required surgery. During surgery, Dr. Johnson determined that both lobes of the thyroid required removal. After surgery, Ms. Day had internal bleeding which necessitated an emergency second surgery. The bleeding also caused edema in her trachea; as a result, Ms. Day was on a ventilator for a week. A few weeks later, Ms. Day's vocal cords stopped moving, preventing her from breathing and requiring an emergency tracheotomy. Ms. Day now suffers from a permanent speaking disability which she alleges was caused by the surgery.

The Days brought suit against Dr. Johnson for negligence and loss of consortium. Only the negligence claim is at issue here. In support of the negligence claim, Ms. Day alleged that Dr. Johnson incorrectly assessed her condition, recommended inappropriate treatment, used an improper surgical technique that damaged Ms. Day's nerves and larynx, and improperly removed the right lobe of her thyroid.

The trial court submitted the issue of Dr. Johnson's negligence to the jury. Included in the trial court's instructions to the jury was Instruction 27 submitted by Dr. Johnson stating in part that “[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent.” The instruction given mirrored the language of pattern jury instruction CJI–Civ. 15:4. The trial court submitted this instruction over the Days' objection.

The jury found that Dr. Johnson was not negligent. The Days appealed and challenged, among other issues, the use of the jury instruction patterned after CJI–Civ. 15:4. The court of appeals affirmed the trial court holding that the instruction adequately and accurately states the applicable Colorado law.

The Days, along with amicus curiae Colorado Trial Lawyers Association, petitioned this Court for certiorari review. We granted certiorari on the issue of whether the court of appeals properly concluded that CJI–Civ. 15:4, the “unsuccessful outcome/exercise of judgment” instruction, correctly states the law and should be given in medical malpractice cases.

II. Standard of Review

Trial courts have a duty to correctly instruct juries on all matters of law. Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.2009); Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1993). We review de novo whether a particular jury instruction correctly states the law. Fishman v. Kotts, 179 P.3d 232, 235 (Colo.App.2007). In that review, we examine whether the instructions as a whole accurately informed the jury of the governing law. Id. As long as the instruction properly informs the jury of the law, a trial court has broad discretion to determine the form and style of jury instructions. Krueger, 205 P.3d at 1157. Therefore, we review a trial court's decision to give a particular jury instruction for an abuse of discretion. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App.1996). A trial court's ruling on jury instructions is an abuse of discretion only when the ruling is manifestly arbitrary, unreasonable, or unfair. Kinney v. People, 187 P.3d 548, 558 (Colo.2008).

III. Analysis

A. The Issue on Appeal

First, we address which issues have been preserved for appeal. C.R.C.P. 51 requires parties to object to alleged errors in instructions before they are given to the jury and only the objected-upon grounds will be considered on appeal. See also Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo.App.2009). Alleged errors not objected to are waived. Id. In addition, under the invited error doctrine, we will not review alleged errors in jury instructions drafted and tendered by the now objecting party. People v. Zapata, 779 P.2d 1307, 1309 (Colo.1989).

We begin by examining the objection raised at trial to the jury instruction at issue. Both parties tendered instructions based on CJI–Civ. 15:4. Dr. Johnson tendered an instruction that included all of the language from CJI–Civ. 15:4:

A physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient.

An unsuccessful outcome does not, by itself, mean that a physician was negligent.

An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent.

The Days tendered an instruction that mirrored the first two sentences of CJI–Civ. 15:4 and Dr. Johnson's tendered instruction, but omitted the last sentence:

A physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient.

An unsuccessful outcome does not, by itself, mean that a physician was negligent.

The Days' counsel objected to Dr. Johnson's tendered instruction, arguing that the pattern instruction misstated the law.¹ Over the objection, the trial court charged the jury with the full instruction including the last sentence which contained the exercise of judgment language.

On appeal, the Days argue that this Court should hold that CJI–Civ. 15:4's language: (1) conflicted with the standard of care by introducing subjectivity into an objective standard of care; (2) was duplicative; (3) commented on the evidence; (4) overemphasized the defense's theory of the case; and (5) was not supported by the evidence. In opposition, Dr. Johnson argues that the Days only objected to the last sentence of the instruction asserting that the exercise of judgment language “provid[ed] the universal defense to everything.” As such, Dr. Johnson contends that this Court need only review the last sentence of the instruction given and that this Court's review should be limited to whether the last sentence is an accurate statement of the law in Colorado.

We agree that our review is limited to whether the last sentence of CJI–Civ. 15:4 accurately states Colorado law. The Days tendered an instruction that was identical to Dr. Johnson's tendered instruction but for the third sentence which contained the exercise of judgment language. Also, no objection was made to the first two sentences of the jury instruction. Accordingly, we decline to address the portion of CJI–Civ. 15:4 that the Days tendered because they waived review by failing to object to those portions and because any potential error resulting from the jury's reliance on those portions is attributable to the Days' tendered jury instruction. The Days' only contemporaneous objection was that the exercise of judgment language contained in the third sentence misstated the law by conflicting with the objective standard of care. Therefore, the Days preserved for appeal the issue of whether the third sentence of CJI–Civ. 15:4 accurately states the law. We will not, however, consider whether the instruction was duplicative, commented on the evidence, overemphasized the defense's theory of the case, or was not supported by the evidence because those issues were not preserved for appeal.

B. Medical Malpractice Law in Colorado

To determine whether CJI–Civ. 15:4 is an accurate statement of the law, we begin by examining Colorado medical malpractice law. A medical malpractice action is a particular type of negligence action. Greenberg v. Perkins, 845 P.2d 530, 534 (Colo.1993). Like other negligence actions, the plaintiff must show a legal duty of care on the defendant's part, breach of that duty, injury to the plaintiff, and that the defendant's breach caused the plaintiff's injury. Id. at 533.

A physician's duty arises out of a contractual relationship when a physician undertakes to treat or otherwise provide medical care to another. Id. at 534. It has long been acknowledged in Colorado that, in the absence of a special contract, the law implies that a physician employed to treat a patient contracts with his patient that: (1) he possesses that reasonable degree of learning and skill which is ordinarily possessed by others of the profession; (2) he will use reasonable and ordinary care and...