Kelly v. Haralampopoulos

• Decision Date: 16 June 2014
• Docket Number: Supreme Court Case No. 11SC889
• Citation: 327 P.3d 255
• Parties: Jason L. KELLY, M.D. and Mauricio L. Waintrub, M.D., Petitioners v. Vasilios HARALAMPOPOULOS, BY his guardian John HARALAMPOPOULOS, Respondent.
• Court: Colorado Supreme Court

327 P.3d 255

Jason L. KELLY, M.D. and Mauricio L. Waintrub, M.D., Petitioners

v.Vasilios HARALAMPOPOULOS, BY his guardian John HARALAMPOPOULOS, Respondent.

Supreme Court Case No. 11SC889

Supreme Court of Colorado.

June 16, 2014

Certiorari to the Colorado Court of Appeals, Case No. 2010CA668

Attorneys for Petitioner Jason L. Kelly, M.D.: Kay J. Rice, Beth N. Nesis, Cooper & Clough, PC, Denver, Colorado, Andrew M. Low, Shannon Wells Stevenson, John M. Bowlin, Kyle Wesley Brenton, Davis Graham & Stubbs LLP, Denver, Colorado.

Attorney for Petitioner Mauricio L. Waintrub, M.D.: David H. Yun, Jaudon & Avery LLP, Denver, Colorado.

Attorneys for Respondent Vasilios Haralampopoulos, by his guardian John Haralampopoulos: Teresa D. Locke, Keeya Marie Jeffrey, Holland & Hart LLP, Denver, Colorado.

Attorneys for Amicus Curiae American Medical Association, Colorado Chapter of the American College of Emergency Physicians, Colorado Medical Society, Colorado Radiological Society, and Colorado Society of Anesthesiologists: Kari Mackercher Hershey, Hershey Decker, LLC, Littleton, Colorado

and John L. Conklin, Jerome R. Geraghty, Martin Conklin, P.C., Denver, Colorado.

Attorney for Amicus Curiae Colorado Defense Lawyers Association: Troy Robert Rackham, Maureen R. Weiland, Fennemore Craig, PC, Denver, Colorado.

Attorney for Amicus Curiae Regents of the University of Colorado: Patrick Terrence O'Rourke, Office of University Counsel, Denver, Colorado.

En Banc

JUSTICE EID delivered the Opinion of the Court.

¶ 1 Respondent Vasilios Haralampopoulos visited the emergency room with severe abdominal pain. After a CT scan revealed a large cystic mass in his liver, Petitioner Dr. Mauricio Waintrub examined Respondent, gave a differential diagnosis identifying four possible causes for his condition, and approved a fine-needle biopsy to determine the nature of the cyst. Petitioner Dr. Jason Kelly performed the procedure, during which Respondent suffered respiratory and cardiac arrest. Normal resuscitation efforts were unsuccessful, and it took over 30 minutes to revive Respondent's heart. Lack of oxygen to his brain left Respondent in a vegetative state.

¶ 2 Ten days later, Respondent's family and friends met with doctors to determine why Respondent went into arrest and had such a poor reaction to resuscitation efforts. After the meeting, Respondent's then-roommate and ex-girlfriend Gulsans Akyol Hurd approached Dr. Kelly and asked him whether Respondent's prior cocaine use could have contributed to his injuries. Dr. Kelly responded that cocaine could have contributed to Respondent's resistance to normal resuscitation efforts, but he was not a cardiologist so he did not know.

¶ 3 Respondent brought a medical malpractice suit against seven individuals, including Petitioners Dr. Kelly and Dr. Waintrub. Respondent filed a motion in limine seeking to exclude Hurd's statements to Dr. Kelly as inadmissible hearsay not covered by any hearsay exception. In particular, Respondent argued that the statements did not qualify under Colorado Rule of Evidence 803(4), which creates a hearsay exception for statements “made for purposes of medical diagnosis or treatment.” Further, Respondent argued that because Hurd's statements were inadmissible, any additional testimony regarding cocaine use was inadmissible as irrelevant. The trial court denied the motion in limine, finding that Hurd's statements were made for purposes of diagnosis and treatment under Rule 803(4), and that their probative value was not substantially outweighed by the danger of unfair prejudice under Colorado Rule of Evidence 403.

¶ 4 The court of appeals reversed, finding that the trial court abused its discretion by admitting evidence of Respondent's cocaine use. Haralampopoulos ex rel. Haralampopoulos v. Kelly, 2011 WL 4908743 at *6, –––P.3d ––––, –––– (Colo.App.2011). The court held that Hurd's statements to Dr. Kelly were not admissible under Rule 803(4) because of the Rule's “prospective” focus. Id. The court reasoned that because the statements were made after Respondent was in a vegetative state and treatment was no longer possible, they were not made for the purpose of diagnosis or treatment. Id. at *6–7, ––––. The court of appeals further held that, even if the statements were admissible under Rule 803(4), the trial court abused its discretion in finding that their probative value was not substantially outweighed by the danger of unfair prejudice under Rule 403. Because Hurd's statements were inadmissible, the court of appeals reasoned, so was any lay or expert testimony on cocaine use. Id. at *9, ––––. Judge Webb dissented, concluding that Rule 803(4) did not contain a prospective limitation. Id. at *23, –––– (Webb, J., dissenting).

¶ 5 We now reverse. The court of appeals erred in limiting the scope of Rule 803(4) to statements made for the purpose of prospective treatment. The Rule's plain language applies to “diagnosis or treatment,” and while the term “treatment” has a prospective focus, the term “diagnosis” does not. Instead, diagnosis focuses on the cause of a patient's medical condition, and may or may not involve subsequent treatment. Here, Hurd's statements were made for the purposeof discovering the cause of Respondent's resistance to normal resuscitation efforts, and were thus admissible under Rule 803(4). We also conclude that the trial court did not abuse its discretion in finding that the statements' probative value was not substantially outweighed by the danger of unfair prejudice under Rule 403. Finally, we conclude that, given the admissibility of Hurd's statements, the trial court did not err in admitting additional lay and expert testimony regarding Respondent's prior cocaine use. Accordingly, we reverse the court of appeals' decision, and remand the case to the trial court to enter a judgment in Petitioners' favor.

I.

¶ 6 On November 23, 2004, Respondent visited the emergency room complaining of severe abdominal pain. During his intake, Respondent denied any drug use. A CT scan of Respondent's liver revealed a large cystic mass. The on-call surgeon recommended a fine-needle aspiration biopsy. Dr. Waintrub, an internal medicine specialist, examined Respondent and issued a differential diagnosis identifying possible causes for Respondent's cyst: hydatid cyst, amoebiasis, abscess, or cancer. To determine the cause of Respondent's condition, Dr. Waintrub approved the aspiration. The next day, Dr. Kelly, an interventional radiologist, performed the aspiration. During the procedure, Respondent went into respiratory arrest, and then cardiac arrest. Respondent did not react to normal resuscitation efforts, and it took over 30 minutes to revive his heart. Lack of oxygen to his brain caused a brain injury, and Respondent is now in a vegetative state. Subsequent tests revealed that the cyst was a hydatid cyst.¹ During the aspiration, toxic material from the cyst flowed out of the needle and caused respiratory and cardiac arrest.

¶ 7 On December 3, 2004, Dr. Kelly and other doctors met with Respondent's sisters, his mother, an attorney, and his ex-girlfriend and then-roommate Gulsans Akyol Hurd (“Hurd”) because they wanted to know what caused Respondent's injuries. Before the meeting and outside the doctors' presence, Hurd asked the family whether Respondent's past cocaine use could have had anything to do with his failure to respond to resuscitation. No one mentioned Hurd's question or Respondent's past cocaine use at the meeting with the doctors.

¶ 8 About two weeks after the aspiration, Hurd approached Dr. Kelly privately and asked him whether cocaine use could have contributed to Respondent's injures. Hurd testified at trial that she asked Dr. Kelly this question because “we were all searching for answers ... I was asking these questions because nobody had answers for me, and so therefore I kept questioning and questioning hoping to find an answer.” Hurd testified that she told Dr. Kelly,

[Respondent] used to do drugs in the past, he used to do a little cocaine, and, you know, could it have been in his system and could it have interacted with the anesthesia or could it have sent him into cardiac arrest or—you know, I was—I don't know if I was asking it right, but I was searching for some kind of answer or reason why this happened.

¶ 9 Dr. Kelly testified that in addition to asking whether Respondent's cocaine use could have contributed to his injuries, Hurd told him that

[Respondent] was a recreational cocaine user and that that had been an issue in their relationship, and that in the days around his first emergency room visit,[²] he had been using a significant amount of cocaine because of the pain; and he didn't feel that the physicians at the hospital after his first visit had given him enough pain medicine.

Dr. Kelly told Hurd that cocaine use could have contributed to the cardiac arrest, but he was not an expert on cocaine or cardiology, so he did not know. Dr. Kelly asked Hurd whether she knew that Respondent had been using cocaine, and she said, “I was not here when he got admitted to the hospital.” Dr. Kelly did not note Hurd's comments on Respondent's chart or otherwise inform medical personnel. He stated that he did not do so because, “I didn't really see what good it would do ... at that point it didn't seem to matter.”

¶ 10 Respondent, through his brother and guardian John Haralampopoulos (“John”), brought a medical malpractice action against seven individuals, including Dr. Kelly and Dr. Waintrub. Before trial, Respondent filed a motion in limine, arguing that Hurd's statements to Dr. Kelly were hearsay that did not fall within any exception, including Rule 803(4). Respondent also argued that, because Hurd's statements were inadmissible, any lay or expert testimony regarding Respondent's cocaine use and the possible health effects of cocaine use should be excluded as irrelevant. Finally, Respondent offered that even if Hurd's statements to...