Gasteazoro v. Catholic Health Initiatives Colo.

• Decision Date: 09 October 2014
• Docket Number: Court of Appeals No. 13CA0648
• Citation: 408 P.3d 874
• Parties: Mary Catherine GASTEAZORO, BY AND THROUGH her Conservator, Janice EDER, Plaintiff–Appellant, v. CATHOLIC HEALTH INITIATIVES COLORADO, d/b/a Centura Health–Penrose–St. Francis Health Services; and Leticia Overholt, M.D., Defendants–Appellees.
• Court: Colorado Court of Appeals

408 P.3d 874

Mary Catherine GASTEAZORO, BY AND THROUGH her Conservator, Janice EDER, Plaintiff–Appellant,

v.CATHOLIC HEALTH INITIATIVES COLORADO, d/b/a Centura Health–Penrose–St. Francis Health Services; and Leticia Overholt, M.D., Defendants–Appellees.

Court of Appeals No. 13CA0648

Colorado Court of Appeals, Div. IV.

Announced October 9, 2014

Leventhal, Brown & Puga, P.C., Jim Leventhal, Benjamin I. Sachs, Molly L. Welch, Denver, Colorado, for Plaintiff–Appellant.

Retherford, Mullen & Moore, LLC, J. Stephen Mullen, Anthony D. Moore, Kimberly F. Wells DeLine, Colorado Springs, Colorado, for Defendant–Appellee Catholic Health Initiatives.

Stinnett & Masters LLP, Mark A. Stinnett, Margaret N. Masters, Colorado Springs, Colorado, for Defendant–Appellee Leticia Overholt, M.D.

Opinion by JUDGE WEBB

¶ 1 This medical negligence case raises a novel question in Colorado—may nurses be included in a jury instruction derived from the pattern exercise-of-judgment instruction given concerning physicians? Here, after having been so instructed, a jury returned a verdict against plaintiff, Mary Catherine Gasteazoro, and in favor of defendants, Catholic Health Initiatives Colorado, d/b/a Centura Health–Penrose–St Francis Health Services (the hospital), and Leticia Overholt, M.D. (Dr. Overholt). We conclude that the trial court acted within its discretion by instructing the jury, as to the claim against the hospital for the alleged negligence of its nurses, "An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent." We further conclude that the court did not err in overruling plaintiff's objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine. Therefore, we affirm.

I. Facts

¶ 2 When plaintiff arrived at the hospital's emergency department, nurse Yerger saw her first. Plaintiff presented with complaints of headache, nausea, dizziness, and neck pain. Her vital signs included high blood pressure and low blood oxygen saturation. Dr. Overholt, who was practicing as a specialist in emergency medicine, evaluated her, diagnosed a cervical sprain, and ordered her discharged. The doctor did not order an MRI, a CT scan, or any other tests. Nurse Scolardi processed the discharge, although plaintiff's blood pressure remained elevated.

¶ 3 Ten days later, plaintiff was found in her home, unresponsive. She had suffered a hemorrhagic stroke resulting from a ruptured aneurysm in her brain. The stroke caused serious injuries.

¶ 4 Plaintiff alleges that her treatment in the emergency department was below the standard of care in three ways.

• Nurse Yerger did not properly triage her.

• Dr. Overholt failed to recognize that her symptoms were consistent with an impending cerebral vascular incident (CVA) and did not order tests that would have detected a CVA or aneurysm.

• Nurse Scolardi did not follow the hospital's policies in discharging her despite unstable vital signs, rather than acting as her advocate by challenging the discharge order.

II. The Trial Court Did Not Err by Including Nurses in the Error-in-Judgment Jury Instruction

A. Preservation and Standard of Review

¶ 5 The hospital disputes preservation because on appeal plaintiff argues against the instruction based on Colorado law dealing with physicians, while below plaintiff did so based on lack of evidence. True, during the instruction conference, plaintiff's counsel did not cite any authority. But this issue has not been decided in Colorado.

¶ 6 During the instruction conference, hospital counsel acknowledged plaintiff's concern "that nurses don't actually exercise judgment," which had been the basis of plaintiff's written objection ("a nurse cannot exercise judgment in there for [sic] this sentence is inapplicable"). Still, counsel argued for a professional judgment instruction that included nurses patterned after CJI–Civ. 4th 15:4 (2011). Counsel explained that in "notes on use for the 15:27, it specifically states that the 15:4 applies not only to physicians, but also other health care practitioners or practitioners of other healing arts."

¶ 7 Plaintiff's counsel responded that "unsuccessful outcome doesn't apply to a nurse," "a nurse doesn't come to her own diagnosis of a problem," and "exercise of judgment is not part of what a nurse can do."

¶ 8 Then the trial court engaged both counsel in a discussion of this instruction. It concluded that adding "nurse" to an instruction derived from CJI–Civ. 15:4 would obviate giving an instruction derived from CJI–Civ. 4th 15:27 (2011).¹

¶ 9 For these reasons, we conclude that plaintiff preserved the issue whether an instruction based on CJI–Civ. 15:4 can include nurses. See Ninth Dist. Prod. Credit Ass'n v. Ed Duggan, Inc., 821 P.2d 788, 799 (Colo. 1991).

¶ 10 A trial court must instruct the jury correctly on all matters of law. See, e.g., Steward Software Co. v. Kopcho, 266 P.3d 1085, 1087 (Colo. 2011). Whether a trial court's instructions correctly state the law is reviewed de novo. See, e.g., Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). But where the instructions correctly inform the jury of the law, "a trial court has broad discretion to determine the form and style of jury instructions." Id . Such a decision as to a particular instruction will be upheld unless it "is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law." McLaughlin v. BNSF Ry. Co., 2012 COA 92, ¶ 30, 300 P.3d 925.

¶ 11 Under this standard, "[i]t is not necessary that we agree with the trial court's decision." Gen. Steel Domestic Sales, LLC v. Bacheller, 2012 CO 68, ¶ 42, 291 P.3d 1 (internal quotation marks omitted). An appellate court should affirm so long as the trial court's decision does not "exceed the bounds of the rationally available choices." Id . (internal quotation marks and alteration omitted). And the appellate court may affirm the decision "on any grounds supported by the record." McLaughlin, ¶ 30.

¶ 12 In a civil case, a properly preserved objection to a particular instruction is subject to the harmless error rule. See, e.g., Harner v. Chapman, 2012 COA 218, ¶ 25. This rule permits reversal only if a jury "probably would have decided a case differently if given a correct instruction." Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo. App. 2009).

B. Background

¶ 13 The disputed instruction provided:

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

As relevant here, this instruction differs from CJI–Civ. 15:4 by including "or nurse." The court also gave the following stipulated instruction, based on CJI–Civ. 4th 15:26 (2011):

A nurse or hospital is negligent when the nurse does an act that reasonably careful nurses would not do or fails to do an act that reasonably careful nurses would do.

To determine whether a nurse's conduct was negligent, you must compare that conduct with what a nurse having and using the knowledge and skill of nurses practicing in the same field of practice, at the same time, would or would not have done, under the same or similar circumstances.

C. Law

1. Colorado

¶ 14 Initially, plaintiff argues that because under C.R.C.P. 51.1(1), a trial court "shall use such instructions as are contained in Colorado Jury Instruction (CJI) as are applicable to the evidence and the prevailing law," the mere existence of CJI–Civ. 15:4 forecloses a modified version including nurses. This argument is unpersuasive, for two reasons.

¶ 15 First, a trial court may depart from CJI where "the factual situation or changes in the law warrant a departure from the CJI instructions." C.R.C.P. 51.1(2). Departure must be an option because CJI does not "cover every possible legal principle which may be applicable in a given case." Fed. Ins. Co. v. Pub. Serv. Co., 194 Colo. 107, 110, 570 P.2d 239, 241 (1977) ; see Short v. Kinkade, 685 P.2d 210, 211 (Colo. App. 1983) (reversing trial court's refusal to modify pattern instruction, although absence of Colorado precedent required that prevailing law be derived from secondary authority).

¶ 16 Second, Notes on Use 2 for CJI–Civ. 15:2 says in part: "This instruction is generally applicable to members of other healing arts." And Notes on Use 1 to CJI–Civ. 15:4 cross references the Notes on Use for CJI–Civ. 15:1 and 15:2. Still, no Colorado case has addressed the propriety of this instruction other than in a malpractice claim against a physician.

¶ 17 Contrary to the hospital's argument, the references to "other healing arts" does not alone show that the instruction was proper. Notes on Use 2 for CJI–Civ. 15:2 lists as professionals "surgeon," "dentist," and "chiropractor," but not "nurse." And in any event, "notes contained in CJI are not law." Krueger v. Ary, 220 P.3d 923, 928 (Colo. App. 2007).

¶ 18 Nor is the exercise-of-judgment sentence in CJI–Civ 15:27 determinative. This instruction refers to "other professionals." The Source and Authority comment says that this instruction "sets out the same principles that are applicable to physicians and practitioners of other healing arts." Thus, if a nurse was not within the "other healing arts" category, the nurse would not be entitled to an exercise-of-judgment instruction as an "other professional." Cf. Fiscus v. Liberty Mortg. Corp., 2014 COA 79, ¶ 28, 373 P.3d 644 ("[S]pecific terms prevail over general terms.").

¶ 19 For these reasons, the parties' arguments based on CJI–Civ. are not dispositive.

¶ 20 Next, plaintiff argues that although no Colorado case addresses whether a nurse should be included in a professional judgment instruction, decisions explaining why...