Rodriguez ex rel. Rodriguez v. Healthone, No. 98CA2173.

Decision Date25 May 2000
Docket NumberNo. 98CA2173.
Citation24 P.3d 9
PartiesRobert RODRIGUEZ By and Through his next friend and legal guardian, Lori RODRIGUEZ, Plaintiff-Appellant, v. HEALTHONE, d/b/a Aurora Presbyterian Hospital; Gary Arthur Ogin, M.D.; and COPIC Insurance Company, Defendants-Appellees.
CourtColorado Court of Appeals

Certiorari Granted June 4, 2001.1

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Schoenwald, Sanger & Kudla, LLC, M. Susan Kudla, Denver, Colorado, Pearson, Milligan & Horowitz, P.C., Robert M. Horowitz, Denver, Colorado for Plaintiff-Appellant.

Kennedy & Christopher, P.C., Barbara H. Glogiewicz, John R. Mann, Denver, Colorado, for Defendant-Appellee Healthone d/b/a Aurora Presbyterian Hospital.

Long & Jaudon, P.C., Alan D. Avery, James M. Miletich, Denver, Colorado, for Defendant-Appellee Gary A. Ogin, M.D.

Davis, Graham & Stubbs, LLP, Andrew M. Low, Kenzo S. Kawanabe, Denver, Colorado, for Defendant-Appellee COPIC Insurance Company.

Opinion by Judge TAUBMAN.

In this medical malpractice action, plaintiff, Robert Rodriguez, appeals the trial court's summary judgment in favor of defendant, Gary Arthur Ogin, an anesthesiologist. Rodriguez also appeals the trial court's denial of his request for a lump sum payment from defendant Healthone, d/b/a Aurora Presbyterian Hospital, (the hospital) through defendant, COPIC Insurance Company. We affirm in part, reverse in part, and remand for further proceedings.

In October 1990, Rodriguez' 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 the hospital. Between 1991 and 1995, Rodriguez received more than 100 nerve block treatments from Malcolm Barton, another anesthesiologist at the hospital.

For nerve block treatments, doctors at the hospital used two drugs—guanethidine and phenol. Rodriguez was treated with guanethidine, a drug administered intravenously. Phenol, on the other hand, is administered directly onto the affected nerve, and is toxic if administered intravenously. With regard to nerve block treatments, the hospital has a policy requiring doctors to request only a single dose of any medication administered, and to discard any medication remaining after the administration. This is referred to as the "single-dose policy."

On or about August 8, 1995, Rodriguez was at the hospital for a nerve block treatment. It is undisputed that on that day the nerve block cart had a vial of phenol left there by Ogin after he had given a dose to another patient three weeks earlier. The vials holding guanethidine and phenol were identical except for the medication names on the labels.

On that day, Barton, who administered Rodriguez' nerve block treatment, mistakenly took the vial of phenol, instead of the vial of guanethidine, and injected it into Rodriguez' arm. As a result, Rodriguez immediately had a reaction to the injection, and his arm swelled. Consequently, to relieve the pressure, Rodriguez underwent a fasciotomy, a surgical procedure which 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, Rodriguez' dressing on his arm had to be changed. During this process, Barton gave Rodriguez various sedatives to relieve the pain in his arm. Barton, however, gave him too many sedatives, and consequently, he suffered a cardiopulmonary arrest and stopped breathing. Barton resuscitated him, but because Rodriguez had been without oxygen to his brain for approximately five minutes, 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 the hospital and Barton. He later amended his complaint to include Ogin, the anesthesiologist who had left the phenol on the nerve block cart. The trial court subsequently granted summary judgment in favor of Ogin, thus dismissing Rodriguez' claims against him. The trial court found that a physician/patient relationship did not exist between Rodriguez and Ogin, and thus Rodriguez could not maintain a negligence action against him. The court further found that Ogin's action in leaving the phenol in or on the nerve block cart was not the proximate cause of Rodriguez' injuries. Finally, the trial court concluded that Ogin's actions did not rise to the level of outrageous conduct.

Rodriguez settled with Barton before the case went to trial.

At trial, the jury awarded Rodriguez damages in the amount of $4,950,730. The jury attributed 70 percent of the fault to Barton, and 30 percent of the fault to the hospital. Rodriguez received his past medical damages, lost wages, and attorney fees in a lump sum. The trial court then ordered that Rodriguez' future lost earnings be paid monthly by COPIC until December 31, 2024, regardless of whether Rodriguez survives until then. The trial court also ordered that the monthly payment of Rodriguez' future medical and non-economic damages be paid until Rodriguez' death.

Subsequently, Rodriguez' wife sought to elect, on his behalf, to receive the future medical and non-economic damages in a lump sum, rather than as periodic payments. The trial court denied this request, stating that pursuant to a provision of the Health Care Availability Act (HCAA), § 13-64-101, et seq., C.R.S.1999, an incapacitated person may not elect to receive that part of a damage award which represents future medical expenses and non-economic damages in a lump sum rather than as periodic payments. The trial court further found that the HCAA provision requiring Rodriguez to accept the judgment as periodic payments did not violate his equal protection rights under the Colorado and United States Constitutions.

I. Summary Judgment Concerning Ogin

Rodriguez first contends the trial court erred in dismissing his claims against Ogin. We agree.

Appellate review of summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995)

.

In determining whether summary judgment was appropriate, a reviewing court must view the facts in the light most favorable to the non-moving party. Colorado Civil Rights Commission v. North Washington Fire Protection District, 772 P.2d 70 (Colo. 1989). The initial burden is on the moving party to show that there is no genuine issue of material fact. Once that burden has been met, the burden shifts to the non-moving party to show specific facts demonstrating the existence of a genuine issue of material fact. Civil Service Commission v. Pinder, 812 P.2d 645 (Colo.1991).

A. Acceptance of Attorney Fees

Initially, we address and reject Ogin's assertion that this appeal should be dismissed because by accepting attorney fees from the court registry, Rodriguez accepted a benefit of the judgment, thus precluding his right to judicial review.

A party who "accepts an award or legal advantage under a judgment normally waives his right to any review of the adjudication which may again put in issue his right to the benefit which he has accepted." Farmers Elevator Co. v. First National Bank, 181 Colo. 231, 234, 508 P.2d 1261, 1263 (1973). The acceptance of attorney fees as part of the satisfaction of a judgment may be a legal advantage as contemplated by the general rule. Farmers Elevator Co. v. First National Bank, supra.

However, this general rule does not apply here because Ogin was not the party who paid the judgment from which Rodriguez benefited. In support of his argument, Ogin relies on cases holding that where there are multiple parties, and the judgment is paid in full by one of the parties, the appeal is moot as to all the parties. See Union of Professional Airmen v. Alaska Aeronautical Industries, Inc., 625 F.2d 881 (9th Cir.1980)

; Schiller v. Penn Central Transportation Co., 509 F.2d 263 (6th Cir.1975).

Those cases are distinguishable because both involved situations where one party benefited from another party's payment. Here, Ogin had been dismissed as a party to the case, and thus did not benefit from Healthone's payment of the judgment. Consequently, Rodriguez did not accept a benefit from a judgment paid by or on behalf of Ogin, and therefore, this appeal is not moot as to Ogin.

B. Summary Judgment

Rodriguez asserts the trial court erred in granting summary judgment in favor of Ogin based on its conclusion that Ogin did not owe him a duty and that Ogin's conduct was not the proximate cause of his injuries. Rodriguez argues that because there are genuine issues of material fact, summary judgment was inappropriate. Rodriguez also argues that even if there are no disputed issues of material fact, Ogin owed Rodriguez a duty of reasonable care. We agree.

1. Duty

To establish a prima facie case for negligence, a plaintiff must show (1) that a legal duty was owed by the defendant to him or her; (2) that defendant breached that duty; (3) that there was injury to him or her; and (4) that defendant's breach caused his or her injury. Greenberg v. Perkins, 845 P.2d 530 (Colo.1993). Whether a duty exists is a question of law to be determined by the court. Greenberg v. Perkins, supra.

Thus, on appeal, this determination is reviewed de novo. In re Quiat, 979 P.2d 1029 (Colo. 1999).

Once the court has determined a duty exists, it is for the trier of fact to determine whether the defendant breached that duty. Greenberg v. Perkins, supra.

In a medical malpractice action, the existence of a duty arises out of the professional relationship between a physician and patient. Greenberg v. Perkins, supra.

However, in the absence of such a relationship, a duty of reasonable...

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