Garhart ex rel. Tinsman v. Columbia/Healthone, LLC

• Decision Date: 28 June 2004
• Docket Number: No. 02SA182.,02SA182.
• Parties: Kody GARHART, a minor, by and through his parents and next friends, Jennifer TINSMAN and Kip Garhart; and Jennifer Tinsman, individually, Plaintiffs-Appellants/Cross-Appellees v. COLUMBIA/HEALTHONE, L.L.C., d/b/a North Suburban Medical Center, Defendant-Appellee/Cross-Appellant.
• Court: Colorado Supreme Court

95 P.3d 571

Kody GARHART, a minor, by and through his parents and next friends, Jennifer TINSMAN and Kip Garhart; and Jennifer Tinsman, individually, Plaintiffs-Appellants/Cross-Appellees v. COLUMBIA/HEALTHONE, L.L.C., d/b/a North Suburban Medical Center, Defendant-Appellee/Cross-Appellant.

No. 02SA182.

Supreme Court of Colorado, En Banc.

June 28, 2004.

As Modified on Denial of Rehearing August 16, 2004.

Bogue, Koury & Marylander LLC, Grant Marylander, Denver, Colorado, Irwin & Boesen, P.C., Kirk D. Tresemer, Brad R. Irwin, Attorneys for Plaintiffs-Appellants/Cross-Appellees.

Davis Graham & Stubbs, Andrew Low, Vinineath Nuon Gopal, Denver, Colorado, Dickinson, Prud'Homme, Adams & Ingram, LLP, Gilbert Dickinson, Attorneys for Defendant-Appellee/Cross-Appellant.

Kennedy & Christopher, P.C., John R. Mann, Denver, Colorado, Attorney for Amicus Curiae, COPIC Insurance Company.

McDermott, Hansen & McLaughlin, LLP, William J. Hansen, Denver, Colorado, Attorney for Amicus Curiae, Colorado Trial Lawyers Association.

Montgomery Little & McGrew, P.C., Patrick T. O'Rourke, Greenwood Village, Colorado, Attorney for Amicus Curiae, Colorado Medical Society.

Justice HOBBS delivered the opinion of the court.

We accepted this appeal in a medical malpractice case pursuant to section 13-4-102(1)(b), 5 C.R.S. (2003), which allows us to proceed directly when a trial court has declared a statute to be unconstitutional.¹ Relying on the court of appeals opinion in Rodriguez v. HealthONE, 24 P.3d 9 (Colo.App.2000), the trial court in this case declared the periodic payment provision of section 13-64-205(1)(f), 5 C.R.S. (2001), which is applicable to people under the age of twenty-one and incapacitated adults, to be unconstitutional.² In HealthONE v. Rodriguez, 50 P.3d 879 (Colo.2002), we subsequently reversed the court of appeals and upheld the statute's periodic payment provision. We adhere to our decision in Rodriguez.

Nonetheless, plaintiffs Jennifer Tinsman (Tinsman) and Kody Garhart, through his parents and next friends (Garhart), raise numerous other constitutional challenges to the Health Care Availability Act (HCAA), all of which we reject.

For its part, North Suburban Medical Center (Hospital) seeks to set aside or modify the Tinsman and Garhart medical malpractice damage awards, based on alleged trial court errors. We reject all of the Hospital's challenges to the trial court rulings, except that we order apportionment of Garhart's and Tinsman's noneconomic damages and economic damages that the district judge has not, or cannot, exempt from the economic damages cap, after application of the HCAA damage caps rather than before, and order periodic payments of Garhart's future damages.

For purposes of our analysis and holdings, we group the numerous issues into constitutional challenges and trial ruling challenges.

As to the Tinsman and Garhart constitutional challenges to the HCAA, we hold: (1) Tinsman and Garhart have standing to raise their constitutional challenges to the HCAA; (2) the periodic payment requirement of section 13-64-205(1)(f), 5 C.R.S. (2001) is not unconstitutional; (3) the HCAA damages caps of section 13-64-302(1)(b) (total damages limited to $1,000,000 per patient and noneconomic damages limited to $250,000 per patient) do not violate the Colorado Constitution's right to a jury trial in a civil case, because there is no such constitutional right; (4) these HCAA damages caps do not infringe impermissibly on the judicial remittitur authority; (5) these HCAA damages caps do not violate separation of powers by contravening this court's rules regarding jury trial and the trial court's role in entering judgment and ruling on post-trial motions set forth in C.R.C.P. 38, 39(a), 58, and 59; (6) these HCAA damages caps do not violate constitutional equal protection provisions based on an alleged fundamental right to a jury trial in a civil case, because there is no such Colorado constitutional right; and (7) as to the equal protection claim involving an inflationary adjustment to the noneconomic damages cap, we find no disparate treatment because the inflationary adjustment provision of the general negligence act applies only to claims that accrue on or after January 1, 1998.

As to the Hospital's trial ruling challenges, we hold (1) there was sufficient evidence of the Hospital's negligence and proximate cause for the injuries and damages to send the Tinsman and Garhart claims to the jury; (2) the trial court did not abuse its discretion in refusing to instruct the jury on a duty of the non-party doctors to gain Tinsman's informed consent before proceeding with a vaginal birth instead of a cesarean section delivery; (3) the trial court did not err when it refused to instruct the jury to apportion Garhart's damages between hypoxia during labor and subsequent shoulder dystocia; (4) the trial court did not err when it excluded evidence regarding the cost of an annuity to help establish the present value of Garhart's future damages; but (5) the trial court erred by not applying the jury's apportionment percentages for party and non-party defendants to the capped noneconomic damages award and the capped economic damages awards that the district judge has not, or cannot, exempt from the economic damages cap; and (6) the trial court erred by ordering Garhart's future damages to be paid in a lump sum, rather than in the form of periodic payments.

Accordingly, we affirm in part and reverse in part. We instruct the trial court to: (1) order periodic payment of Garhart's future damages; and (2) calculate the apportionment of Garhart's and Tinsman's noneconomic damages and economic damages that the district judge has not, or cannot, exempt from the economic damages cap, after application of the HCAA damages caps rather than before, using the jury's apportionment percentages for party and non-party defendants.

I. Background

A. Facts

On September 4, 1996, Tinsman gave birth to Garhart. When Tinsman entered the Hospital on September 3, 1996, her pregnancy with Garhart was proceeding normally. The delivery was terribly complicated by actions of the nurses, doctors, and the Hospital. As a result, Tinsman suffered severe pelvic damage during the delivery, and Garhart incurred severe cerebral palsy from birth trauma. Garhart's condition also includes impairment of fine and gross motor skills; mental retardation; a brachial plexus injury, which renders his left arm essentially nonfunctional; moderate to severe hearing loss; and seizure disorder.

Garhart is Tinsman's third child. She delivered her first two children by cesarean section (c-section). Despite Tinsman's inclination to have a third cesarean delivery, her primary obstetrician, Dr. Volin, recommended she attempt vaginal delivery. Tinsman agreed. Due to Dr. Volin's absence on vacation, his associate Dr. Monica Abarca attended Garhart's birth. Dr. Abarca had recently completed her residency training.

The Hospital assigned Nurse Sunny Powell to the Tinsman delivery. Nurse Powell had fourteen years of labor and delivery experience and had completed advanced courses in fetal monitoring.

At 9:32 a.m. on September 3, 1996, Tinsman went into labor and was admitted to the Hospital. Garhart was a normal, healthy, full-term fetus. Upon admission, the Hospital attached Tinsman to a fetal monitor, which continually printed a strip to chart the fetal heartbeat and the mother's uterine contractions. The purpose of this fetal monitoring is to monitor for fetal asphyxia and optimize the child's delivery.

At 10:45 p.m. on September 3, the fetal monitoring strip data for Garhart was somewhat abnormal, but within acceptable parameters. Nevertheless, Dr. Abarca noted that she would proceed towards a c-section delivery procedure if increased medication did not further Tinsman's labor. Dr. Abarca then went to the call room to take a nap. At 11:15 p.m., Nurse Powell called Dr. Abarca to notify her of "mild to moderate variable decelerations."³

By this time, the fetal monitoring strip data showed that Garhart might be in trouble from fetal hypoxia and acidosis. But, Nurse Powell did not ask Dr. Abarca to come look at the fetal monitor strip and did not call Dr. Abarca again until 12:45 a.m. on September 4.

During the hour and a half after Nurse Powell notified Dr. Abarca of the decelerations in Garhart's monitoring strip data and before she again called Dr. Abarca, several events took place. From 11:15 to 11:24, the monitoring strip data indicated a sharp decline in Garhart's condition. By 11:24, the strip data showed that the umbilical cord was compressed, resulting in a severe lack of oxygen to Garhart's brain. The monitoring strip data continued to worsen from this point on.

At 11:45 p.m., Nurse Powell began giving oxygen to Tinsman. After the strip data showed another severe deceleration at 11:50, she turned Tinsman onto her left side in an attempt to relieve pressure from the umbilical cord. These interventions did not improve Garhart's monitoring strip data.

At 12:30 a.m., Nurse Powell turned Tinsman onto her right side. The decelerations continued. The monitoring strip data showed Garhart to be in severe trouble. By this time, he needed immediate assistance and, likely, had already sustained permanent brain damage.

Nurse Powell finally summoned Dr. Abarca at approximately 12:45 a.m. Dr. Abarca arrived and determined to proceed with an expeditious vaginal delivery. Tinsman pushed repeatedly. Dr. Abarca resorted to using forceps. After three pulls, Garhart was not yet free; his shoulder stuck on his mother's pelvic bone — a condition called shoulder dystocia. After four or five minutes more, Dr. Abarca succeeded in dislodging Garhart. Born at 1:32 a.m., he was clinically dead at birth.

Resuscitation procedures began. Fifteen minutes later, Garhart first showed signs of living. Within five hours he developed seizures. A CT scan disclosed severe cerebral edema...