Scholle v. Ehrichs

• Docket Number: Court of Appeals No. 20CA2051
• Decision Date: 28 July 2022
• Citation: 519 P.3d 1093,2022 COA 87 M
• Parties: Susan Ann SCHOLLE, as Personal Representative for the Estate of Daniel B. Scholle, Plaintiff-Appellee, v. Edward EHRICHS, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC, d/b/a Sky Ridge Medical Center, Defendants-Appellants.
• Court: Colorado Court of Appeals

519 P.3d 1093

2022 COA 87 M

Susan Ann SCHOLLE, as Personal Representative for the Estate of Daniel B. Scholle, Plaintiff-Appellee,

v.Edward EHRICHS, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC, d/b/a Sky Ridge Medical Center, Defendants-Appellants.

Court of Appeals No. 20CA2051

Colorado Court of Appeals, Division I.

Announced July 28, 2022

As Modified September 15, 2022

Thomas Keel & Laird, LLC, Isobel S. Thomas, Jennifer L. Keel, Matthew R. Laird, Denver, Colorado; Connelly Law, LLC, Sean Connelly, Denver, Colorado, for Plaintiff-Appellee

Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado; Hall & Evans, L.L.C., Deanne C. McClung, Mary P. Kaluk, Denver, Colorado, for Defendant-Appellant Edward Ehrichs, M.D.

Wheeler Trigg O'Donnell LLP, Kevin J. Kuhn, Theresa Wardon Benz, Meghan Frei Berglind, Kevin C. Havelda, Denver, Colorado; Messner Reeves LLP, Douglas C. Wolanske, Mark B. Collier, Denver, Colorado, for Defendant-Appellant Michael Rauzzino, M.D.

Sharuzi Law Group, Ltd., Jacqueline B. Sharuzi, Theodore Hosna, Denver, Colorado, for Defendant-Appellant HCA-HealthONE, LLC, d/b/a Sky Ridge Medical Center

Opinion by JUDGE DAILEY

¶ 1 In this medical malpractice case, the defendants—Edward Ehrichs, M.D.; Michael Rauzzino, M.D.; and HCA-HealthONE, LLC, d/b/a Sky Ridge Medical Center (the Hospital)—appeal the trial court's entry of judgment in favor of Susan Ann Scholle, personal representative of the estate of the plaintiff, Daniel B. Scholle.¹ We affirm in part, reverse in part, and remand with directions.

I. Background

¶ 2 During a five-week trial, the jury heard evidence from which it could reasonably find the following.

¶ 3 In August 2015, Daniel B. Scholle was severely injured as a result of elective back surgery performed by Doctors Ehrichs and Rauzzino at the Hospital.

¶ 4 Dr. Ehrichs is a general and vascular surgeon whose role in the surgery was to access the spine through the abdomen and, in his words, move "blood vessels out of the way so that the spine and disk space [are] exposed for the spine surgeon." After doing so here, he left the operating room, and Dr. Rauzzino—a specialist in spinal surgery—and his Physician's Assistant (PA) then performed the spinal procedure: a discectomy

and anterior lumbar interbody fusion (ALIF).

¶ 5 Around 1:25 p.m., while removing a guide device—the Medtronic LT cage system—during the fusion part of the procedure, Dr. Rauzzino detected heavy bleeding from what was eventually determined to be an injury to Scholle's iliac vein. Dr. Ehrichs was recalled to the operating room, and he and Dr. Rauzzino tried unsuccessfully to get control of the bleeding. Hospital medical personnel (the medical team), including other surgeons and an on-call physician, were called in to help.

¶ 6 Scholle experienced significant blood loss² and received a constant blood transfusion

. Around 4:05 p.m., he went into cardiac arrest. He was revived.

¶ 7 Around 4:15 p.m., the medical team doctors decided to repair the injury to Scholle's vein using venous stents

. But the stents were too small for Scholle's atypically large vein. Consequently, the Hospital's medical team opted to obtain, from another hospital, an endovascular aneurysm repair (EVAR) kit containing a larger stent that was designed for use in performing abdominal aortic aneurysm (AAA) surgeries. Using two EVAR stents, the medical team was able to repair Scholle's vein and hand the matter back to Dr. Ehrichs at 6:43 p.m. to finish the procedure. Scholle was then transported to the intensive care unit (ICU).

¶ 8 Dr. Ehrichs saw Scholle the next day, hoping to confirm that he could soon remove some laparotomy

pads (i.e., sponges) he had used during the surgery to absorb some of the bleeding. Dr. Ehrichs determined, however, that Scholle was too unstable at that point and chose, instead, to remove the pads "two or three" days later.

¶ 9 Scholle stayed in the ICU for 100 days because of continued complications. He suffered an infection in the surgical site

, which progressed into sepsis and required repeated abdominal surgeries; injured kidneys requiring repeated dialysis; an abdominal abscess ; peritonitis ; colon perforation ; respiratory distress; stroke ; foot drop; and gangrene in the toes requiring an amputation.

¶ 10 Scholle also spent a month in a rehabilitation center and continued receiving medical treatment for different problems experienced since surgery.

¶ 11 Two years after the surgery, Scholle filed the present medical malpractice action against Drs. Ehrichs and Rauzzino and the Hospital. And after a twenty-two-day trial, the jury determined that Dr. Rauzzino was 45% responsible, Dr. Ehrichs 40% responsible, and the Hospital 15% responsible, for $9,292,887 in economic damages to Scholle.³

¶ 12 The trial court said that it would subsequently (1) adjust the jury's award of damages in accordance with the Health-Care Availability Act (HCAA), sections 13-64-101 to - 503, C.R.S. 2021; and (2) enter judgment nunc pro tunc to the day of the jury's verdict, for purposes of calculating interest.

¶ 13 Approximately three months after the jury returned a verdict, the trial court, in a written order, found that "good cause" existed for allowing damages in excess of the $1 million HCAA cap.

¶ 14 And, nearly ten months after the jury returned a verdict, and after significant post-trial litigation, the trial court determined in a written order that (1) judgment would enter as of that date (as opposed to date the jury returned its verdict); (2) prejudgment interest was part of the damages award; (3) Scholle was entitled, as of that date, to $5,040,278.31 in prejudgment (prefiling, post-filing, and post-verdict) interest; and (4) final judgment would, then, enter in the amount of $14,997,980.28, with each of the three defendants liable according to the jury's previous allocation of fault.

¶ 15 All three defendants now appeal.

II. Issues on Appeal

¶ 16 The defendants raise numerous issues on appeal. The issues can, however, be categorized as follows:

1. Did the trial court err by denying Dr. Rauzzino's and the Hospital's motions for directed verdict?

2. Did the court err by instructing the jury on physical impairment, the "thin skull" doctrine, and negligence per se?

3. Does the record support the jury's award of economic damages?

4. Did the court properly enter judgment in excess of the $1 million HCAA damages cap and without accounting for possible collateral sources of compensation?

5. Did the court properly enter judgment without giving it nunc pro tunc effect to the day the jury returned its verdict?

¶ 17 We address each contention in turn.

III. Dr. Rauzzino's and the Hospital's Motions for Directed Verdict

¶ 18 Dr. Rauzzino and the Hospital contend that the trial court erred by determining that there was sufficient evidence of their negligence to send the issue of their liability to the jury.⁴ We disagree.

¶ 19 We review a trial court's decision on a motion for directed verdict de novo. State Farm Mut. Auto. Ins. Co. v. Goddard , 2021 COA 15, ¶ 26, 484 P.3d 765.

A. General Legal Principles

¶ 20 Under C.R.C.P. 50, a party may move for a directed verdict at the close of the evidence offered by the opposing party. "Directed verdicts are not," however, "favored." Goddard , ¶ 25. Indeed, a motion for directed verdict may be granted only if the evidence, considered in the light most favorable to the nonmoving party, "compels the conclusion that reasonable persons could not disagree and that no evidence, or legitimate inference therefrom, has been presented upon which a jury's verdict against the moving party should be sustained." Id. (quoting Burgess v. Mid-Century Ins. Co. , 841 P.2d 325, 328 (Colo. App. 1992) ).

¶ 21 "Like the [trial] court, we must consider all the facts in the light most favorable to the nonmoving party and determine whether a reasonable jury could have found in favor of the nonmoving party." Id. at ¶ 26. A court shouldn't grant a motion for directed verdict "unless there is no evidence that could support a verdict against the moving party on the claim." Parks v. Edward Dale Parrish LLC , 2019 COA 19, ¶ 10, 452 P.3d 141.

¶ 22 "Like other negligence actions," to succeed on a medical malpractice action, a "plaintiff must show a legal duty of care on the defendant's part, breach of that duty, injury to the plaintiff, and that the defendant's breach caused the plaintiff's injury." Day v. Johnson , 255 P.3d 1064, 1068-69 (Colo. 2011).

B. Dr. Rauzzino

¶ 23 As the supreme court noted in Day ,

[A] medical malpractice claim requires more than proving a poor outcome; a breach of the applicable standard of care is required. To establish a breach of the duty of care in a medical malpractice action, the plaintiff must show that the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant. That standard of care is measured by whether a reasonably careful physician of the same school of medicine as the defendant would have acted in the same manner as did the defendant in treating and caring for the patient. Thus, the standard of care for medical malpractice is an objective one.

Id. at 1069 (footnote and citations omitted).

¶ 24 Dr. Rauzzino contends that the trial court erred by denying his motion for directed verdict because there was insufficient evidence to show that he breached a duty of care owed to Scholle by operating despite risks associated with Scholle's diabetes, using a PA to assist during surgery, and using the Medtronic device.

1. Operating Despite Risks Associated with Scholle's Diabetes

¶ 25 Evidence was presented at trial that Scholle's primary care physician (PCP) ordered routine pre-operation blood tests five days before surgery, including an A1C test, which measured an average of blood glucose levels over an approximate three-month time period, and a different test for current blood glucose levels. Scholle's results showed that,...