HealthONE v. Rodriguez ex rel. Rodriguez

• Decision Date: 24 June 2002
• Docket Number: No. 00SC772.,00SC772.
• Citation: 50 P.3d 879
• Parties: HEALTHONE d/b/a Aurora Presbyterian Hospital; Copic Insurance Company; and Gary Arthur Ogin, M.D., Petitioners, v. Robert RODRIGUEZ, by and through his next friend and legal guardian, Lori RODRIGUEZ, Respondent.
• Court: Colorado Supreme Court

50 P.3d 879

HEALTHONE d/b/a Aurora Presbyterian Hospital; Copic Insurance Company; and Gary Arthur Ogin, M.D., Petitioners, v. Robert RODRIGUEZ, by and through his next friend and legal guardian, Lori RODRIGUEZ, Respondent.

No. 00SC772.

Supreme Court of Colorado, En Banc.

June 24, 2002.

Rehearing Denied August 5, 2002.¹

Davis Graham & Stubbs, LLP, Andrew M. Low, Kenzo S. Kawanabe, Sonaly A. Kirkley, Denver, Colorado, Attorneys for Petitioner COPIC Insurance Company.

Kennedy & Christopher, P.C., John R. Mann, Barbara H. Glogiewicz, Denver, Colorado, Attorneys for Petitioner HealthONE, d/b/a Aurora Presbyterian Hospital.

Jaudon & Avery, LLP, Alan D. Avery, David H. Yun, Denver, Colorado, Attorneys for Petitioner Gary Arthur Ogin, M.D.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, M. Susan Kudla, PC, M. Susan Kudla, Denver, Colorado, Pearson, Milligan & Horowitz, P.C., Robert M. Horowitz, Denver, Colorado, Attorneys for Respondent.

Montgomery Little & McGrew, P.C., Patrick T. O'Rourke, Greenwood Village, Colorado, Attorney for Amicus Curiae Physicians Insurers Association of America.

Justice MARTINEZ delivered the Opinion of the Court.

This case arises out of injuries sustained by Robert Rodriguez while he was receiving treatment at HealthONE d/b/a Aurora Presbyterian Hospital ("HealthONE"). As a result of these injuries, which left Rodriguez severely incapacitated, Rodriguez filed an action against HealthONE, Dr. Malcolm Barton, the treating physician, and Dr. Gary Ogin, a non-treating physician, seeking damages on several theories, including medical malpractice, negligence and outrageous conduct. Before trial, Barton settled with Rodriguez. The trial court granted summary judgment in favor of Ogin, and Rodriguez proceeded to trial against HealthONE. The jury returned a verdict in favor of Rodriguez, and the trial court entered judgment accordingly.

Rodriguez appealed the trial court's grant of summary judgment in favor of Ogin, and the court of appeals reversed. Rodriguez v. HealthONE, 24 P.3d 9 (Colo.Ct.App.2000). The court of appeals held that Ogin owed Rodriguez a common law duty of reasonable care. Id. at 15. Rodriguez also appealed the trial court's denial of his request for a lump-sum payment from HealthONE. Id. at 12. The court of appeals held that section 13-64-205(1)(f)(II) of the Health Care Availability Act (HCAA), §§ 13-64-101 to -503, 5 C.R.S. (2001), which provides that an incapacitated person may not elect to receive future medical and non-economic damages in a lump-sum payment, is unconstitutional and violates Rodriguez's equal protection rights because it puts him, as an incapacitated person, in a worse position than he would be in if he were not incapacitated. Id. at 19.

We granted certiorari to first determine whether Rodriguez waived his right to appeal when he accepted the attorneys' fees awarded to him under the judgment against HealthONE; if we conclude that Rodriguez is not precluded from appealing, we must then determine whether Ogin owed Rodriguez a duty of care. In addition, because HealthONE argues that Rodriguez is not adversely affected by application of section 13-64-205(1)(f)(II) ("the incapacitated person provision"), we also granted certiorari to determine whether Rodriguez has standing to challenge the constitutionality of such provision. If we conclude that Rodriguez has standing, we must then determine whether the incapacitated person provision violates Rodriguez's equal protection rights.²

We conclude that Rodriguez did not waive his right to appeal the trial court's grant of summary judgment in favor of Ogin by accepting the attorneys' fees awarded under the judgment against HealthONE. We further hold that, as a matter of law, Ogin owed Rodriguez a common law duty of reasonable care. In addition, although we find that Rodriguez does have standing to challenge the constitutionality of the incapacitated person provision, we hold that the provision is constitutional and does not violate Rodriguez's equal protection rights. Therefore, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

I. Facts and Procedure

In October 1990, Rodriguez's left index finger was amputated as a result of a work-related accident. Because of the amputation, Rodriguez suffered from Reflex Sympathetic Dystrophy (RSD), a chronic pain syndrome, in his left arm. To alleviate his discomfort, Rodriguez received nerve block treatments at HealthONE. Beginning in 1991, Dr. Malcolm Barton, an anesthesiologist at HealthONE, began treating Rodriguez by administering guanethidine nerve blocks to relieve the pain caused by the RSD. Between 1991 and 1995, Rodriguez received more than 100 nerve block treatments at HealthONE, most of which were administered by Barton.

For nerve block treatments, doctors at HealthONE used two drugs — guanethidine, a drug administered intravenously, and phenol, a drug which is injected directly onto the affected nerve. Phenol is toxic if it is administered intravenously. With regard to nerve block treatments, HealthONE had a policy requiring doctors to request from the pharmacy only a single dose of any medication administered and to discard any medication remaining after administration. This was referred to as the "single-dose policy."³ On August 8, 1995, Rodriguez was at HealthONE for a nerve block treatment. Barton, who administered Rodriguez's nerve block treatment, mistakenly took a vial of phenol, instead of the vial of guanethidine that he had requested from the pharmacy, and injected it into Rodriguez's arm. The vials holding guanethidine and phenol were identical except for the medication names on the labels. It is undisputed that the vial of phenol that Barton found on the nerve block cart and mistakenly injected into Rodriguez was left there by Dr. Gary Ogin, another anesthesiologist at HealthONE, after he had given a dose to another patient three weeks earlier.

The injection of phenol caused Rodriguez to develop cellulitis and compartment syndrome in his left arm. As a result, Rodriguez immediately underwent a fasciotomy, a surgical procedure that required a doctor to slit the skin on both sides of his arm from hand to elbow to relieve pressure that would have otherwise cut off circulation. Two days later, while the dressing on Rodriguez's arm was being changed, Barton gave Rodriguez various sedatives to relieve the pain. Barton, however, gave him too many sedatives, and consequently, Rodriguez suffered a cardiopulmonary arrest and stopped breathing. Barton resuscitated him, but because Rodriguez had been without oxygen, he suffered irreversible, catastrophic, anoxic brain injury leaving him severely incapacitated. Because of the severity of his incapacity, Rodriguez will require supervised living and attendant care for the rest of his life.

Rodriguez brought suit against HealthONE and Barton. He later amended his complaint to include Ogin, the anesthesiologist who left the phenol in or on the nerve block cart.⁴ The trial court subsequently granted summary judgment in favor of Ogin, finding that because a physician-patient relationship did not exist between Rodriguez and Ogin, Rodriguez could not maintain a medical malpractice action against Ogin. The trial court further found that, under common law negligence, Ogin did not owe a duty of care to Rodriguez because the risk of harm was slight and the injury was unforeseeable. In addition, the trial court found that Ogin's action of leaving the phenol in or on the nerve block cart was not the proximate cause of Rodriguez's injuries. Finally, the trial court concluded that Ogin's actions did not rise to the level of outrageous conduct. Thus, the trial court dismissed Rodriguez's claims against Ogin.

Rodriguez settled with Barton before the case went to trial, leaving HealthONE as the sole remaining defendant. The special verdict form that was submitted to the jury instructed it to determine the value of past damages that Rodriguez had incurred and the present value of future damages that Rodriguez would probably incur. The jury awarded Rodriguez damages in the amount of $4,950,730. Of this amount, the jury found that HealthONE was liable for thirty percent (30%), as the jury attributed seventy percent (70%) of the fault to Barton and thirty percent (30%) of the fault to HealthONE. Pursuant to section 13-64-205(1)(b) and (c), the trial court awarded Rodriguez his past medical damages, lost wages, and attorneys' fees in a lump-sum payment. Pursuant to section 13-64-203(1), the trial court ordered that Rodriguez's future damages be paid in periodic payments. In order to fund the periodic payments, the trial court ordered that an annuity be purchased in the amount awarded by the jury. Both parties submitted proposals regarding the funding and distribution of the periodic payments. The trial court approved HealthONE's funding and ordered that COPIC Insurance Company pay Rodriguez $732.15 a month for future lost earnings, the amount proposed by Rodriguez, until December 31, 2024, regardless of whether Rodriguez survives until that date. The trial court also ordered that the monthly payment of Rodriguez's future medical and non-economic damages be $6,650.14, the amount proposed by HealthONE, and be paid until Rodriguez's death.

Rodriguez's wife sought to elect, on his behalf, to receive the future medical and non-economic damages in a lump-sum payment, rather than in periodic payments. The trial court denied the request, stating that pursuant to the incapacitated person provision of the HCAA, an incapacitated person may not elect to receive that part of a damage award that represents future medical expenses and non-economic damages in a lump-sum payment rather than as periodic payments. The trial court further found that the incapacitated person provision of the HCAA, which required Rodriguez to accept the judgment of future damages as periodic...