P.W. v. Children's Hosp. Colo.

• Decision Date: 25 January 2016
• Docket Number: Supreme Court Case No. 15SA151
• Citation: 364 P.3d 891
• Parties: In Re P.W., Individually and as Guardian and Conservator for K.W., a Minor Child, Plaintiff v. CHILDREN'S HOSPITAL COLORADO; Children's Hospital Colorado Health System; and The Children's Hospital Association, d/b/a The Children's Hospital Corporation, d/b/a The Children's Hospital of Colorado, Defendants
• Court: Colorado Supreme Court

364 P.3d 891

In Re P.W., Individually and as Guardian and Conservator for K.W., a Minor Child, Plaintiff

v.CHILDREN'S HOSPITAL COLORADO; Children's Hospital Colorado Health System; and The Children's Hospital Association, d/b/a The Children's Hospital Corporation, d/b/a The Children's Hospital of Colorado, Defendants

Supreme Court Case No. 15SA151

Supreme Court of Colorado.

January 25, 2016

Attorneys for Plaintiff: Reilly Pozner LLP, Sean Connelly, Denver, Colorado, Hillyard Wahlberg Kudla Sloan & Woodruff LLP, David Woodruff, Steve Wahlberg, Denver, Colorado.

Attorneys for Defendants: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado.

Attorneys for Amicus Curiae The Regents of the University of Colorado: Office of University Counsel, Patrick T. O'Rourke, Erica Weston, Denver, Colorado.

Attorneys for Amici Curiae Colorado Defense Lawyers Association and Community Hospital Association, d/b/a Boulder Community Hospital: Pryor Johnson Carney Karr Nixon, P.C., Stephen J. Hensen, Elizabeth C. Moran, Greenwood Village, Colorado.

Attorneys for Amici Curiae Colorado Trial Lawyers Association: Anna N. Martinez, Greenwood Village, Colorado, Joseph F. Bennett, Colorado Springs, Colorado.

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶ 1 In this original proceeding stemming from a medical malpractice action, we are asked to decide whether, as a matter of law, a known suicidal patient who is admitted to the secure mental health unit of a hospital and placed under high suicide-risk precautions can be subject to a comparative negligence defense when the patient attempts suicide while in the hospital's custody. Plaintiff P.W. sued Children's Hospital (the Hospital) both individually and as the conservator of his son K.W., who is in a minimally conscious state after suffering a devastating anoxic brain injury when he attempted to kill himself by hanging while at the Hospital. The trial court granted plaintiff's motion for summary judgment and dismissed the Hospital's comparative negligence and assumption of risk defenses. The trial court also issued an order preventing the Hospital from obtaining K.W.'s pre-incident mental health records.

¶ 2 The Hospital petitioned this court for an order to show cause and we agreed to review the following three issues, as framed by the Hospital: (1) whether the trial court abused its discretion by precluding discovery of K.W.'s pre-incident mental health records related to his suicidal ideation even though Plaintiff claims Children's Hospital negligently failed to prevent K.W.'s suicide attempt, (2) whether the trial court abused its discretion by precluding discovery of records from K.W.'s treating psychiatrist and Cedar Springs Hospital when they were a part of a continuing course of treatment that included Children's Hospital, and (3) whether the trial court erred by granting Plaintiff summary judgment dismissing the comparative negligence and assumption of risk defenses despite evidence K.W. could think rationally and protect himself from harm during the hospitalization.

¶ 3 We first analyze the trial court's dismissal of the Hospital's comparative negligence and assumption of risk defenses and hold that it was proper because, under the undisputed facts, the Hospital could not assert those defenses as a matter of law. Second, we conclude that we need not address the trial court's discovery order.

I. Facts and Procedural History

¶ 4 K.W., a 16–year–old boy, was admitted to the emergency room at Children's Hospital at around 9 a.m. on June 26th, 2013, after his father discovered that he had ingested multiple pills and deeply lacerated his wrist in a suicide attempt.¹ K.W. had been struggling with depression and suicidal ideation for some time. In fact, he had been to the emergency room at the Hospital only a month earlier, when his concerned psychiatrist, Dr. David Williams, sent him there for a "crisis assessment." After that assessment, K.W. was admitted to Cedar Springs Hospital in Colorado Springs for inpatient psychiatric treatment. He was treated at Cedar Springs from May 25th through 29th and then returned home, where his parents believed "things had improved."

¶ 5 However, at about 3 a.m. on June 26th, while his parents were asleep, K.W. broke into a locked safe full of medications and ingested approximately fifty pills, and then cut his left wrist. When his father woke him up later that morning he noticed the wrist laceration, and K.W. told him about the pills he had taken. They went to the emergency room where the doctors treated K.W. for the drug ingestion and closed his wound. Emergency room staff noted that K.W. would need to be referred to the psychiatric department "after medical clearance given [his] significant suicidal gesture." That day, K.W. told a mental health counselor that he was "suicidal" and that he was a "level 8 out of 10 for wanting to kill [him]self." He also told the counselor that "this was going to happen sooner or later." K.W. told providers he was "disappointed" that his suicide attempt had failed. Hospital staff contacted Dr. Williams and noted his recommendation that K.W. be admitted to the inpatient psychiatric unit. K.W. spent the night at the hospital, where he was monitored by a "one to one" (1:1) sitter and observed closely for suicidal behavior.

¶ 6 The following day, June 27th, K.W. had a psychiatric consultation with Dr. Joseph Schuermeyer, who noted that K.W. was "upset that [suicide attempt] failed" and "still wishes to die." Under "treatment recommendations," Dr. Schuermeyer wrote that K.W. was "clearly a danger to himself and will require inpatient psychiatry hospitalization." Dr. Schuermeyer recommended that the Hospital "continue 1:1" monitoring in order to ensure K.W.'s safety. Under "danger assessment," Dr. Schuermeyer noted that K.W. was "not able to contract for safety." Given K.W.'s situation, his providers recommended that he be transferred to the Hospital's inpatient psychiatric unit. K.W. and his parents agreed, and K.W. was admitted to the psychiatric unit that evening.

¶ 7 Upon K.W.'s transfer to the psychiatric unit, a provider's progress note states that K.W. was admitted for treatment of depression and suicidal ideation"with hanging and cutting self" and was placed on "high suicidal precautions." According to the Hospital's policy, "high suicide precautions" require the patient to be in sight at all times except when using the bathroom, during which time "staff should stand just outside the door and communicate with the patient at least every 30 seconds." The policy also notes that the patient should be checked every fifteen minutes.

¶ 8 A second provider note, recorded at 6 p.m., indicates that K.W. told a nurse that he "felt he would not attempt to hurt himself while in the hospital." He also told the nurse, "I just want to be dead." The nurse wrote that she encouraged him to talk to staff if he was feeling unsafe or if he wanted to hurt himself and K.W. "indicated he would."

¶ 9 Staff allowed K.W. into his bathroom at approximately 9:55 p.m. Tragically, at 10:15 p.m., a hospital employee discovered that during the time K.W. had been left unattended in the bathroom, he was able to hang himself with his scrub pants. When K.W. was discovered, he was unconscious, pulseless to touch, and not breathing. Hospital staff called a "code blue" and began attempts to resuscitate the boy. They ultimately succeeded in regaining a pulse and K.W. was transferred to the pediatric intensive care unit (PICU) and placed on a ventilator. A doctor at the PICU noted that K.W. "appear[ed] to have been ... without pulses for at least 15–20 minutes." K.W. was diagnosed with a severe, permanent anoxic brain injury. He is not expected to recover from his injury and remains unable to talk, walk, eat, or take care of himself.

¶ 10 K.W.'s father, P.W., sued the Hospital both individually and on behalf of K.W. The Hospital asserted affirmative defenses of comparative negligence and assumption of risk, and P.W. moved to dismiss the defenses. The court treated the motion as one for summary judgment and granted the motion, holding that because the Hospital assumed a duty to prevent K.W. from engaging in self-harm, comparative negligence and assumption of risk were not available defenses. On the same day, the trial court issued an order "resolving outstanding discovery disputes." In that order, the court precluded the Hospital from discovering K.W.'s pre-incident mental health records. The Hospital petitioned for an order to show cause under C.A.R. 21, and this court accepted the petition and issued the order.

II. Standard of Review

¶ 11 First, we review a grant of summary judgment de novo. Amos v. Aspen Alps 123, LLC , 2012 CO 46, ¶ 13, 280 P.3d 1256, 1259. Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; HealthONE v. Rodriguez ex rel. Rodriguez , 50 P.3d 879, 887 (Colo. 2002). Generally speaking, "[t]he existence and scope of a legal duty is a question of law." Hesse v. McClintic , 176 P.3d 759, 762 (Colo. 2008).

¶ 12 Second, under C.A.R. 21, this court will review whether a trial court's discovery order constituted an abuse of discretion only where "the normal appellate process would prove inadequate"—specifically, where the allegedly erroneous discovery ruling will "significantly hinder" a party's ability to prove or defend his case on the merits. Warden v. Exempla, Inc., 2012 CO 74, ¶ 16, 291 P.3d 30, 34.

III. Analysis

¶ 13 The Hospital asserts that the trial court erred when it dismissed the Hospital's affirmative defenses of comparative negligence and assumption of risk, and that the trial court improperly precluded the Hospital from obtaining discovery of K.W.'s pre-incident medical records. We first address the dismissal of the Hospital's affirmative defenses on summary judgment and then turn to the court's discovery...