Gray v. Univ. of Colo. Hosp. Auth.

• Decision Date: 05 July 2012
• Docket Number: No. 11CA1041.,11CA1041.
• Parties: Jimmie Louise GRAY, individually and as Personal Representative of the Estate of Charles Gray; Teresa Leeper; David Gray; and Tim Gray, Plaintiffs–Appellants, v. UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, a body corporate and political subdivision of the State of Colorado; University of Colorado Hospital; Mark Spitz, M.D.; Archana Shrestha, M.D.; Christy Barbee–Young, M.D.; Mollie Startzer, R.N.; Beverly Solas–Fajardo, C.N.A.; Jason Booe; Jacqueline Funk; and John Doe and Jane Doe, Defendants–Appellees.
• Court: Colorado Court of Appeals

284 P.3d 191

2012 COA 113

Jimmie Louise GRAY, individually and as Personal Representative of the Estate of Charles Gray; Teresa Leeper; David Gray; and Tim Gray, Plaintiffs–Appellants,

v.UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, a body corporate and political subdivision of the State of Colorado; University of Colorado Hospital; Mark Spitz, M.D.; Archana Shrestha, M.D.; Christy Barbee–Young, M.D.; Mollie Startzer, R.N.; Beverly Solas–Fajardo, C.N.A.; Jason Booe; Jacqueline Funk; and John Doe and Jane Doe, Defendants–Appellees.

No. 11CA1041.

Colorado Court of Appeals,

Div. VI.

July 5, 2012.

Leventhal, Brown & Puga, P.C., Natalie Brown, Benjamin Sachs, DezaRae D. LaCrue, David P. Mason, Denver, Colorado, for Plaintiffs–Appellants.

Hall & Evans, LLC, Richard L. Murray, Jr., Denver, Colorado, for Defendants–Appellees University of Colorado Hospital Authority; University of Colorado; Mollie Startzer, R.N.; Beverly Solas–Fajardo, C.N.A.; Jason Booe; and Jacqueline Funk.

Patrick T. O'Rourke, Denver, Colorado for Defendant–Appellees Mark Spitz, M.D.; Archana Shrestha, M.D.; Christy Barbee–Young, M.D.

Opinion by Judge BERNARD.

¶ 1 This appeal poses two questions that arise from a trial court's decision to dismiss a lawsuit that named a public entity, the University of Colorado Hospital and the University of Colorado Hospital Authority (collectively the hospital), and some of its employees as defendants. First, is a public entity immune from liability for tort claims based on allegations that the entity or the entity's employees acted in a willful and wanton manner? In this case, we conclude the hospital is immune, and, therefore, we affirm the trial court's decision to dismiss the case against it.

¶ 2 Second, is a public employee likewise immune if a plaintiff alleges that he or she acted in a willful and wanton manner? In this case, we conclude that the trial court erred when it dismissed the case against one of the public employees, Mark Spitz, M.D. (the doctor), and we remand the case for further proceedings concerning that employee. However, we conclude that the trial court properly dismissed the case against the rest of the public employees, and, as a result, we affirm those decisions.

¶ 3 This case arose out of the death of Charles Gray, who died while he was a patient at the hospital. His family, including Jimmie Louise Gray, acting individually and as the patient's personal representative, Teresa Leeper, David Gray, and Tim Gray, brought a medical malpractice suit against the hospital and some of its employees.

¶ 4 The defendants in this lawsuit are the hospital; the doctor; Archana Shrestha, M.D.; Christy Barbee–Young, M.D.; Mollie Startzer, R.N.; Beverly Solas–Fajardo, C.N.A.; Jason Booe; Jacqueline Funk; and John Doe and Jane Doe. The defendants moved to dismiss the case against all defendants under the Colorado Governmental Immunity Act (CGIA). The trial court granted the motion.

¶ 5 The family appeals this decision. We affirm in part, reverse in part, and remand for further proceedings. In our analysis affirming a part of the trial court's order, we rely on somewhat different grounds than the trial court employed. See W.O. Brisben Companies, Inc. v. Krystkowiak, 66 P.3d 133, 138 (Colo.App.2002)(an appellate court will affirm a trial court's decision if that decision reached the correct result), aff'd on other grounds,90 P.3d 859 (Colo.2004).

I. Background

¶ 6 The complaint contained the following factual allegations. All defendants accepted these facts as true for the purposes of their motion to dismiss.

¶ 7 The patient suffered from epilepsy. In an effort to determine whether a form of surgery would afford him relief from his condition, he checked into the epilepsy monitoring unit at the hospital in October 2007. The purpose of this admission was to monitor the nature and extent of his seizures as he was weaned from the anti-seizure medication that had been prescribed for him.

¶ 8 Part of the monitoring process required the patient to stay several nights in the hospital. Concerned for his welfare, members of his family asked whether they should stay with the patient to assist in monitoring his seizures. Someone associated with the hospital assured the patient and his family that he would be constantly monitored by hospital personnel around the clock.

¶ 9 The hospital, through a representative, later admitted that this assurance was contrary to fact. He also conceded that hospital policy allowed patients being monitored to gauge the effects of their seizures to be unattended and unobserved by monitoring personnel for extended periods of time.

¶ 10 On the fifth night of the patient's stay, the monitoring technician left him unattended for about one hour in order to “troubleshoot” another patient's electrodes. During this time, the patient suffered a seizure and stopped breathing. Hospital staff was unable to revive him.

¶ 11 The patient's family sued defendants in federal district court. However, the federal court dismissed their suit, concluding that they had “failed to allege a cognizable [c]onstitutional violation sufficient to support a § 1983 claim.” The court declined to exercise supplemental jurisdiction over the remaining state-law claims, and dismissed them without prejudice.

¶ 12 The patient's family then sued defendants in state court. The first amended complaint, which forms the basis of this appeal, alleged a series of claims against defendants: negligence; respondeat superior; negligent training and supervision; lack of informed consent; negligent misrepresentation; fraudulent misrepresentation; breach of fiduciary duty; reckless and/or intentional infliction of emotional distress; and willful and wanton conduct.

¶ 13 Defendants moved to dismiss the case, alleging that the defendants were immune under the CGIA. The hospital also requested permission to tender $150,000 into the court registry as the maximum recovery possible under the CGIA. Neither party requested a Trinity hearing, named for our supreme court's decision in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

¶ 14 The trial court granted the motion to dismiss, and it permitted the hospital to deposit $150,000 in the court's registry. The court then declared the claim moot.

II. Analysis

A. General Principles

¶ 15 The sovereign immunity of public entities is immunity from suit. City of Lakewood v. Brace, 919 P.2d 231, 245 (Colo.1996). Whether a public entity and public employees are immune from suit is an issue of subject matter jurisdiction that is resolved under C.R.C.P. 12(b)(1). Trinity, 848 P.2d at 924–25. The plaintiff bears the burden of showing that immunity has been waived. Capra v. Tucker, 857 P.2d 1346, 1348 (Colo.App.1993).

¶ 16 The issue whether the trial court has subject matter jurisdiction under the CGIA is a matter of statutory interpretation, to be decided under C.R.C.P. 12(b)(1). Herrera v. City & Cnty. of Denver, 221 P.3d 423, 425 (Colo.App.2009). We review the trial court's interpretation of the CGIA de novo. Moran v. Standard Ins. Co., 187 P.3d 1162, 1164–65 (Colo.App.2008).

¶ 17 Our goal in interpreting the CGIA is to give effect to the General Assembly's intent. Middleton v. Hartman, 45 P.3d 721, 730 (Colo.2002). To do so, we look first to the statute's plain language. Herrera, 221 P.3d at 425. The CGIA's terms should be construed in harmony with one another to give full effect to the General Assembly's intent. Fogg v. Macaluso, 892 P.2d 271, 274 (Colo.1995).

¶ 18 The CGIA provides immunity to all public entities from suit for all actions that lie in tort, or that could lie in tort, unless an enumerated exception applies. §§ 24–10–105, –106, –110, C.R.S.2011; Bresciani v. Haragan, 968 P.2d 153, 155 (Colo.App.1998)(the CGIA provides public entities immunity from suit). One of those exceptions applies here: the statute explicitly waives a public entity's immunity for injuries resulting from the “operation of any public hospital.” § 24–10–106(1)(b), C.R.S.2011.

¶ 19 When a public entity's immunity from suit is waived, a plaintiff's recovery is limited to $150,000 per occurrence from one or more public entities. § 24–10–114(1)(a), C.R.S.2011; Lee v. Colorado Dep't of Health, 718 P.2d 221, 229 (Colo.1986)(the cap on liability “provide[s] fiscal certainty to governmental operations and thereby secure[s] the continuing availability of these services to the public.”). Further, subject to an exception that is not relevant here, public entities are not “liable either directly or by indemnification for punitive or exemplary damages or for damages for outrageous conduct.” § 24–10–114(4)(a), C.R.S.2011.

¶ 20 An issue becomes moot when the relief granted by the court would not have a practical effect upon an existing controversy. Rudnick v. Ferguson, 179 P.3d 26, 29 (Colo.App.2007). Therefore, when the plaintiff is offered the maximum amount recoverable at trial, a court usually refrains from addressing the issue of immunity because it is moot. Id. Under the CGIA, a case becomes moot when the plaintiff receives $150,000 per occurrence, as the maximum amount recoverable at trial. § 24–10–118(1), C.R.S.2011; DeForrest v. City of Cherry Hills Vill., 72 P.3d 384, 387 (Colo.App.2002).

B. The Hospital's Immunity Claim as a Public Entity

¶ 21 The patient's family contends that the trial court erred when it concluded that the hospital, as a public entity, was immune from suit for its own willful and wanton conduct or for the willful and wanton conduct of its employees. We disagree because our analysis of the pertinent statutes leads us to conclude that waivers of immunity for acts or omissions that are willful and wanton only apply to public employees, not to public entities.

¶ 22 First, section 24–10–106(1), C.R.S.2011, states that “[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort ... except as provided otherwise...