Hall v. Frankel

• Decision Date: 26 June 2008
• Docket Number: No. 06CA0585.,No. 06CA1774.,No. 05CA2696.,No. 06CA0946.,05CA2696.,06CA0946.,06CA1774.,06CA0585.
• Citation: 190 P.3d 852
• Parties: Karen HALL, individually, as representative of the Estate of Dennis Hall, deceased, and as next friend of Dennis Michael Hall and Kevin Jeffrey Hall, Children, Plaintiff-Appellant, v. Stephen K. FRANKEL, M.D., Defendant-Appellee. Karen Hall, individually, as representative of the Estate of Dennis Hall, deceased, and as next friend of Dennis Michael Hall and Kevin Jeffrey Hall, Children, Plaintiff-Appellee and Cross-Appellant, v. Walter G. Robinson, M.D. and Woodridge Orthopedic and Spine Center, P.C., Defendants-Appellants and Cross-Appellees.
• Court: Colorado Court of Appeals

190 P.3d 852

Karen HALL, individually, as representative of the Estate of Dennis Hall, deceased, and as next friend of Dennis Michael Hall and Kevin Jeffrey Hall, Children, Plaintiff-Appellant, v. Stephen K. FRANKEL, M.D., Defendant-Appellee.

Karen Hall, individually, as representative of the Estate of Dennis Hall, deceased, and as next friend of Dennis Michael Hall and Kevin Jeffrey Hall, Children, Plaintiff-Appellee and Cross-Appellant, v. Walter G. Robinson, M.D. and Woodridge Orthopedic and Spine Center, P.C., Defendants-Appellants and Cross-Appellees.

No. 05CA2696.

No. 06CA0946.

No. 06CA1774.

No. 06CA0585.

Colorado Court of Appeals.

June 26, 2008.

Leventhal, Brown & Puga, P.C., Jim Leventhal, Benjamin Sachs, Hollynd Hoskins, Denver, Colorado, for Plaintiff-Appellant.

Pryor Johnson Carney Karr Nixon, P.C., Elizabeth C. Moran, Greenwood Village, Colorado, for Defendant-Appellee Stephen K. Frankel.

Johnson, McConaty & Sargent, P.C., Brian G. McConaty, Thomas J. Kresl, Brad G. Robinson, Glendale, Colorado; Jaudon & Avery, LLP, David H. Yun, Denver, Colorado, for Defendants-Appellants and Cross-Appellees.

Opinion by Judge ROY.

In this consolidated appeal of a medical malpractice action, Walter G. Robinson, M.D. (the surgeon), appeals the judgment entered on a jury verdict finding him and his professional corporation, Woodridge Orthopedic and Spine Center, P.C. (the P.C.), negligent in the death of Dennis Hall (the decedent). The surgeon also appeals the trial court's calculation of prejudgment interest.

Karen Hall, wife of the decedent, for herself, the decedent's estate, and her two sons (collectively, the family), cross-appeals the trial court's denial of the family's costs with respect to the surgeon and the P.C., the dismissal of their informed consent claim against Stephen K. Frankel, M.D. (the pulmonologist), and the award of costs to the pulmonologist. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

On June 4, 2002, the surgeon performed a total left knee replacement on the decedent. On June 12, 2002, the decedent died from blood clots in his heart and lungs.

The surgeon saw the decedent on June 5 and 6, 2002, but thereafter was "covered" as to the decedent's post-surgical hospital care by Dr. Fujisaki, an orthopedic surgeon (the colleague), and a physician's assistant (the P.A.), both of whom were employed by the P.C.

On June 7, 2002, while hospitalized, the decedent exhibited signs of hypoxia, an inadequate oxygenation of the blood. Hypoxia may be, but is not necessarily, a sign of (1) a pulmonary embolism—a blood clot in the lungs, or deep vein thrombosis (DVT)—a blood clot in the legs, which can lead to a pulmonary embolism, a heart attack, or a stroke; or (2) atelectasis, an incomplete expansion of a lung or portion thereof due to a collapse of the alveoli, which is associated with a lack of activity common to post-surgical patients and is not nearly as dangerous as a pulmonary embolism or DVT.

The pulmonologist consulted and examined the decedent on June 8 and 9, 2002, and ordered supplemental oxygen and a series of tests designed to rule out the possibility of a pulmonary embolism. Based on a chest x-ray, CT angiogram, the administration of blood thinners, and the fact that the decedent seemed to improve after becoming more active, the pulmonologist concluded the decedent's lowered blood oxygen was caused by atelectasis.

On June 9, 2002, the decedent was also examined by an anesthesiologist, the colleague, and the pulmonologist, all of whom concluded he suffered from atelectasis. Because the physicians believed that the decedent suffered from atelectasis, the surgeon was not notified.

An ultrasound is a common tool for diagnosing a DVT. However, an ultrasound was not ordered because the treating physicians believed it was not indicated due to the administration of an anticoagulant. A DVT is also painful, and the decedent, though medicated with pain killers, complained of pain, which the physicians took to be normal post-operative pain.

The colleague discharged the decedent from the hospital on June 9, 2002. While the decedent seemed fine on the evening of June 11, 2002, a friend discovered he had passed away on the morning of June 12, 2002. An autopsy revealed massive clotting throughout the major blood vessels of the decedent's body. However, the pathologist did not examine the veins in the decedent's left calf and thus could not confirm the presence or age of any blood clots in that location, which would have been conclusive evidence of a DVT.

The family initiated a wrongful death action against the surgeon, the P.C., and the pulmonologist (collectively, the defendants) for their failure to diagnose and treat the decedent's DVT.

The jury returned a verdict for the family and against the surgeon, finding the surgeon individually negligent and also responsible for the negligence of the colleague who was his agent. The jury also found the P.C. vicariously liable for the negligence of the surgeon and the colleague. The jury concluded that the pulmonologist was not negligent. All parties moved for the award of costs. The trial court denied the family's motion for costs against the surgeon and the P.C., and granted the pulmonologist's motion for costs against the family.

The surgeon appeals the jury verdicts against him and the trial court's calculation of prejudgment interest (Case No. 06CA0585). The family appeals the dismissal of a claim against the pulmonologist (Case No. 05CA2696) and the trial court's award of costs (Case Nos. 06CA0946 and 06CA1774). The appeals have been consolidated herein.

I.

The surgeon contends that the trial court erred in allowing the family's expert witnesses to testify as to an inappropriate standard of care. We disagree.

The defendants included two orthopedic surgeons and a physician's assistant all employed by the P.C., and a pulmonologist. The standard of care witnesses included several orthopedic surgeons, two hematologists, a pulmonologist, and three forensic pathologists.

Prior to trial, the pulmonologist moved to preclude standard of care testimony from the family's expert witnesses who were not pulmonologists. The surgeon made similar and continuing objections during trial as to experts who were not orthopedic surgeons.

The trial court, reasoning that the identification and treatment of blood clots after surgery were common to many branches of medicine, including hematology, pulmonology, and orthopedics, allowed expert witnesses for both parties to testify as to the standard of care to which any medical doctor would be held, regardless of whether the witness was a specialist and regardless of his or her area of specialty, if any. The trial court stated:

[M]y understanding is that when we look at these specialties, it's like the branching of a tree. There are certain things that they all have in common. There are certain basic medical notions that people know regardless of where they branched to. And if this is something that they all know, I'm probably going to let people who are in other specialties testify as long as the nature of their testimony is you need to know that because you're a doctor.

However, the trial court precluded experts in one specialty from testifying as to the standard of care applicable to treatment rendered within, or limited to, another specialty.

The surgeon argues that the trial court erred in allowing expert physicians with specialties in areas other than orthopedic surgery to testify as to the general standard of care applicable to all physicians with respect to the diagnosis and treatment of DVT and pulmonary embolisms. He argues further that the trial court erred when it instructed the jury with both specialist and non-specialist standards of care.

We review a trial court's ruling regarding the admissibility of evidence under an abuse of discretion standard. Wallbank v. Rothenberg, 74 P.3d 413, 415 (Colo.App. 2003). A trial court's ruling will not be overturned unless it is manifestly arbitrary, unreasonable, or unfair. Id. at 415-16; People v. Moya, 899 P.2d 212, 217 (Colo.App.1994).

Physicians who practice a medical specialty are required to possess a higher degree of skill within that specialty than would a general practitioner or a practitioner in another specialty. See 1 Steven E. Pegalis & Harvey S. Wachsman, M.D., American Law of Medical Malpractice 2d § 3:3 (1992). Specialist physicians are held to a higher standard of care when practicing within their specialty. Jordan v. Bogner, 844 P.2d 664, 666 (Colo.1993). They are measured by a national standard and by what a reasonable physician certified in that specialty would do under similar circumstances. Id.; Wallbank, 74 P.3d at 416; see CJI-Civ. 4th 15:3 (2001).

Expert witnesses must then be qualified in the specialty at issue to testify as to the higher standard of care for that specialty. See Melville v. Southward, 791 P.2d 383, 388 (Colo.1990). A trial court shall not permit an expert in one medical specialty to testify against a physician in another specialty unless the expert demonstrates a substantial familiarity with the other specialty and a similarity between the standards of care in the two fields. § 13-64-401, C.R.S.2007; Melville, 791 P.2d at 388-89.

Nonetheless, as to non-specialty diagnosis and treatment, a physician in one area of practice, or a general practitioner, may testify as to the standard of care common to the medical profession. Pegalis & Wachsman, §§ 3:4, 14:3. In addition, a specialist in one field may testify as to whether a specialist in another field has met the appropriate standard of care when either of the following two criteria is met. Melville, 791 P.2d at 388. One, the expert has demonstrated, through skill, knowledge, training, or experience, a substantial familiarity with the defendant's specialty such that his or her opinion is as well informed as...