Ochoa v. Vered

Decision Date16 April 2009
Docket NumberNo. 06CA2134.,06CA2134.
Citation212 P.3d 963
PartiesGloria OCHOA, Plaintiff-Appellee and Cross-Appellant, v. Eldad VERED, M.D., Defendant-Appellant and Cross-Appellee.
CourtColorado Court of Appeals

Kidneigh & Kaufman, P.C., Stephen C. Kaufman, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Retherford, Mullen, Johnson & Bruce, LLC, J. Stephen Mullen, Kimberly F. Wells, Colorado Springs, Colorado; Pryor Johnson Carney Karr Nixon, P.C., Elizabeth C. Moran, Greenwood Village, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge WEBB.

In this medical negligence action, defendant, Eldad Vered, M.D., appeals the judgment entered on a jury verdict in favor of plaintiff, Gloria Ochoa. Ochoa cross-appeals the trial court's post-trial order reducing the damage award and the calculation of prejudgment interest. We affirm in part, reverse in part, and remand for further proceedings.

Facts

Dr. Vered performed an emergency caesarean section on Ochoa at Parkview Medical Center, during which he used surgical sponges. Before Dr. Vered concluded the procedure, two operating room nurses reported that the sponges had been counted and the count was correct. Nevertheless, a sponge was left in Ochoa's abdomen, requiring another surgery to remove it a few days later.

Ochoa sued Dr. Vered, the nurses, and Parkview. Before trial she settled with and dismissed her claims against Parkview and the nurses. Dr. Vered then designated the nurses as nonparties at fault.

Over Dr. Vered's objection, the jury was instructed on the "captain of the ship" and res ipsa loquitur doctrines. It was also instructed to apportion fault, if any, between Dr. Vered and the nurses, to which Ochoa objected. The jury returned a verdict in favor of Ochoa, apportioning ninety percent fault to Dr. Vered and ten percent fault to the nurses, and awarding economic and noneconomic damages totaling $1,003,964.23.

On Dr. Vered's new trial motion, the court remitted the future medical expenses award from $250,000 to $75,000, reduced the damage award based on the Health Care Availability Act (HCAA) damage cap, section 13-64-302(1)(b), C.R.S.2008, and the jury's allocation of ten percent fault to the nurses, and entered judgment of $425,739.90.

DR. VERED'S APPEAL

I. Vicarious Liability and Respondeat Superior
A. Captain of the Ship Doctrine

Dr. Vered contends the trial court erred by instructing the jury that he was liable for the nurses' negligence based on the captain of the ship doctrine. We disagree.

The captain of the ship doctrine, which is grounded in respondeat superior, imposes vicarious liability on a surgeon for the negligence of hospital employees under the surgeon's control and supervision during surgery. Beadles v. Metayka, 135 Colo. 366, 370-71, 311 P.2d 711, 713-14 (1957); Young v. Carpenter, 694 P.2d 861, 863 (Colo.App. 1984).

The doctrine applies when the surgeon assumes supervision and direction in the operating room. Young, 694 P.2d at 863; see Krane v. Saint Anthony Hosp. Sys., 738 P.2d 75, 76-77 (Colo.App.1987)("[T]he alleged negligent act of the surgical nurse took place over two-and-one-half hours into the surgery, so there can be no factual dispute that the operating surgeon had assumed control.").

Vicarious liability depends on the right to direct or control the actions of another. Russell v. Pediatric Neurosurgery, P.C., 15 P.3d 288, 291 (Colo.App.2000), af'd in part and rev'd in part, 44 P.3d 1063, 1070-71 (Colo.2002) (Russell II). Thus, "an operating surgeon could be held liable for the acts of those assisting even where the surgeon had no voice in their selection." Kitto v. Gilbert, 39 Colo.App. 374, 382, 570 P.2d 544, 550 (1977).

Hence, in a medical negligence case involving acts or omissions during surgery, the jury should be instructed that a surgeon is vicariously liable for the negligence of subordinate hospital employees from the time the surgeon assumes control of the operating room until the surgeon concludes the procedure. Id. (discussing Beadles).

We review jury instructions de novo to determine whether as a whole they accurately inform the jury of the governing law. Fishman v. Kotts, 179 P.3d 232, 237 (Colo. App.2007). A trial court's decision to give a particular jury instruction is reviewed for abuse of discretion. Id. However, when instructing a jury in a civil case, the trial court should generally use those instructions contained in the Colorado Jury Instructions that apply to the evidence under the prevailing law. Id.; see C.R.C.P. 51.1(1).

Here, the trial court gave the following jury instruction:

The operating room staff, including [nurses], were under the control of the defendant Eldad Vered, M.D., at the time of this occurrence. Therefore, any act or omission of any member of the operating room staff, including [nurses], was in law the act or omission of defendant Eldad Vered, M.D.

Dr. Vered does not dispute that he was the surgeon of record who led the surgery; that he was entitled to give orders to the nurses during surgery; and that during the surgery the nurses had to report three sponge counts to him before he concluded the procedure.

Nonetheless, Dr. Vered asserts that he had no right to control how the nurses conducted the sponge counts because a written Parkview protocol states: "The members of the nursing surgical team will be responsible for counting sponges according to established procedure in order to provide quality patient care." However, in the absence of evidence negating Dr. Vered's right to control the operating room staff during surgery, this protocol does not overcome the presumption that, as the surgeon in charge, he had the authority and responsibility to direct the nurses to recount the sponges, if necessary. See Rosane v. Senger, 112 Colo. 363, 365, 149 P.2d 372, 374 (1944) (presumption that nurse was directed by surgeons), superseded by statute on other grounds as stated in Russell II, 44 P.3d at 1067.

Dr. Vered's reliance on Berg v. United States, 806 F.2d 978, 983 (10th Cir.1986)(rejecting physician's liability under the captain of the ship doctrine because "The technologists experienced difficulty during Berg's unsuccessful angiogram because they had not been properly trained by the hospital to use equipment in the back-up room."), is misplaced. Here, Dr. Vered does not assert lack of training. Further, unlike here, the Berg court noted that the doctor "is not in a position to question the assurances given him by the technologists." Id. at n. 3.

Thus, we conclude that the captain of the ship instruction was proper on the facts of this case, and that it accurately informed the jury of the governing law.

We are not persuaded otherwise by Dr. Vered's citation to out-of-state cases that have rejected the captain of the ship doctrine as inconsistent with increasing specialization and modern hospital procedures regarding division of responsibility. See, e.g., Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d 396, 403 (Iowa 1991); Harris v. Miller, 335 N.C. 379, 438 S.E.2d 731, 738 (1994); Anglin v. Kleeman, 140 N.H. 257, 665 A.2d 747, 751 (1995); Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 585 (Tex.1977); Thomas v. Raleigh Gen. Hosp., 178 W.Va. 138, 358 S.E.2d 222, 225 (1987); Lewis v. Physicians Ins. Co., 243 Wis.2d 648, 627 N.W.2d 484, 494 (2001).

Other jurisdictions adhere to the doctrine. See, e.g., Fields v. Yusuf, 144 Cal.App.4th 1381, 51 Cal.Rptr.3d 277, 289 (2006); Johnston v. Sw. Louisiana Ass'n, 693 So.2d 1195, 1199-1200 (La.Ct.App.1997); Rudeck v. Wright, 218 Mont. 41, 709 P.2d 621, 626-27 (1985). Hence, we perceive no compelling reason to depart from the decisions of other divisions of this court that have adopted the doctrine. See, e.g., Krane, 738 P.2d at 76-77; Young, 694 P.2d at 863; Kitto, 39 Colo.App. at 381-82, 570 P.2d at 549. And in any event, we are bound by the supreme court's pronouncement in Beadles. People v. Allen, 111 P.3d 518, 520 (Colo.App.2004).

Nor are we persuaded by Dr. Vered's assertion that the trial court applied the most extreme version of the captain of the ship doctrine by instructing the jury that, as a matter of law, he controlled the nurses and was responsible for their actions, based on his status as the surgeon. According to Dr. Vered, while Beadles treated the instruction as appropriate based on evidence of the surgeon's actual authority in the operating room, dicta in Bernardi v. Community Hospital Ass'n, 166 Colo. 280, 443 P.2d 708 (1968), mistakenly extended the doctrine to all surgical negligence cases. We decline to address any possible conflict between Beadles and Bernardi because Dr. Vered failed to present evidence that he could not direct the nurses as to the sponge count.

The notes on use to Colorado Jury Instruction-Civil 15:1 provide that instructions "[a]s to the potential vicarious liability of a supervising physician or surgeon under the `captain of the ship' doctrine," "modeled after Instructions 8:1 through 8:4 ... should be given." CJI-Civ. 4th 15:1 notes on use 3 (2007). Here, the captain of the ship instruction was properly modeled after Colorado Jury Instruction-Civil 8:2, which applies where only the principal is sued and the principal's authority over the agent is undisputed. CJI-Civ. 4th 8:2 (2007).

Accordingly, we conclude that the trial court did not abuse its discretion by giving the captain of the ship instruction.

B. Settlement with the Nurses

Dr. Vered contends that even if this case is governed by the captain of the ship doctrine, he cannot be vicariously liable for the nurses' negligence because Ochoa released them. We disagree.

Here, the settlement agreement states in relevant part:

[Ochoa] and [Parkview Medical Center] desire to dismiss the action with prejudice, and to fully and completely settle all of the claims that have been brought, or could have been brought, in the action. This agreement is between [Parkview Medical Center] and does not include the...

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