Schuessler v. Wolter

Decision Date24 May 2012
Docket Number11CA0126.,Nos. 11CA0093,11CA0125,s. 11CA0093
Citation310 P.3d 151
PartiesMichael SCHUESSLER, Plaintiff–Appellee and Cross–Appellant, v. James WOLTER, M.D.; and Pinnacol Assurance, Defendants–Appellants and Cross–Appellees.
CourtColorado Court of Appeals


Law Office of Michael Goodman, P.C., Michael Goodman, Englewood, Colorado; Bisset Law Firm, Jennifer E. Bisset, Englewood, Colorado, for PlaintiffAppellee and Cross–Appellant.

Martin Conklin, P.C., John L. Conklin, Amy K. Cardone, Denver, Colorado; Pryor, Johnson, Carney, Karr, Nixon, P.C., Elizabeth C. Moran, Greenwood Village, Colorado, for DefendantAppellant and Cross–Appellee James Wolter, M.D.

Vaughan & DeMuro, David R. DeMuro, Shelby A. Felton, Jennifer C. Madsen, Denver, Colorado, for DefendantAppellant and Cross–Appellee Pinnacol Assurance.

Opinion by Judge CASEBOLT.

¶ 1 In these malpractice and workers' compensation insurance bad faith cases, which were consolidated and tried together, defendants, James Wolter, M.D. (Wolter) and Pinnacol Assurance (Pinnacol), appeal the judgments entered on jury verdicts in favor of plaintiff, Michael Schuessler (Schuessler), who also cross-appeals certain trial court rulings. We reverse the judgment against Wolter and remand for a new trial as to him. We affirm the judgment against Pinnacol in part, reverse it in part, and remand for further proceedings.

I. Facts

¶ 2 Schuessler, a property maintenance worker, was injured on the job while installing a swamp cooler. He filed a workers' compensation claim with R. Merrill, Inc. (Merrill), his putative employer. Pinnacol, which provided workers' compensation insurance coverage for Merrill, denied the claim, asserting that Schuessler's medical condition resulted from chronic degenerative changes and was not related to the accident, and that at the time of the accident, Schuessler was working for another company, not Merrill. Schuessler contested the denial, and an administrative law judge (ALJ) subsequently awarded workers' compensation benefits to him, determining that he had incurred an on-the-job injury while working for Merrill. Pinnacol thereafter paid the benefits due.

¶ 3 At the time of Schuessler's injury, he had medical insurance through Kaiser Foundation Health Care Plan of Colorado (Kaiser). Following his injury, he was initially seen by his primary care physician. Kaiser's neurosurgery department performed a magnetic resonating image (MRI) scan, which showed degenerative damage to his cervical spine.

¶ 4 Wolter, a neurosurgeon working for Kaiser, diagnosed degenerative disc changes at multiple levels and possible herniation of at least one disc. Wolter recommended steroid injections or surgical intervention. At Schuessler's request, Wolter performed anterior cervical diskectomy and fusion (ACDF) surgery. The surgery for that condition was successful, but following the operation, Schuessler experienced chronic hypersensitivity and numbness on his right side, which had not been present before the operation.

¶ 5 Schuessler commenced a medical malpractice action against Wolter, contending that Wolter negligently caused a contusion to his spinal cord during surgery by bumping or nicking it with a surgical tool. Schuessler also filed a common law bad faith breach of insurance contract action against Pinnacol, contending that it had wrongly denied him workers' compensation benefits. The cases were consolidated for trial and, following a nine-day trial, the jury awarded Schuessler $650,000 in economic damages and $325,000 in noneconomic damages against Wolter, and $50,000 in economic damages and $325,000 in noneconomic damages against Pinnacol.

¶ 6 Following a posttrial hearing, the trial court reduced the award against Wolter to $900,000 based on the limitations contained in the Health Care Availability Act, §§ 13–64–101 to –503, C.R.S.2011, awarded prejudgment interest, and entered judgment against Wolter. The court rejected Pinnacol's claim, also submitted posttrial, seeking a declaratory judgment that it had a statutory right of subrogation for any amounts awarded against Wolter for the benefits it had paid to Schuessler. The court concluded that Pinnacol had waived its right to assert a subrogation interest. This appeal followed.

II. Wolter's Appeal

¶ 7 During trial, Schuessler contended, among other things, that the injury to his spinal cord would not have occurred absent Wolter's negligence. Wolter's theory of the case was that the complication Schuessler experienced is a known, inherent risk of ACDF surgery, which can and does occur even when a surgeon exercises reasonable care.

¶ 8 There was no dispute at trial that the surgery resulted in an unsuccessful outcome; experts on both sides of the case so testified. However, the parties disagreed whether such an outcome could occur absent negligence, and the parties' experts differed on whether Wolter had employed reasonable care. Wolter tendered a jury instruction based on CJI–Civ. 4th 15:4, which stated, “As to Plaintiff's negligence claim, a physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. An unsuccessful outcome does not, by itself, mean that a physician was negligent.” The trial court rejected the instruction. Wolter contends that the court erred in doing so, and we agree.

A. Standard of Review

¶ 9 Trial courts have a duty to correctly instruct juries on all matters of law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo.2011).

¶ 10 An appellate court reviews for abuse of discretion a trial court's decision not to give a particular jury instruction. A trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence. Kendrick v. Pippin, 252 P.3d 1052, 1061 (Colo.2011).

¶ 11 When giving jury instructions in a civil case, the trial court generally should use those instructions contained in the Colorado Jury Instructions (CJI) that apply to the evidence under the prevailing law. C.R.C.P. 51.1(1); Fishman v. Kotts, 179 P.3d 232, 235 (Colo.App.2007). However, a judgment will not be reversed for refusal to give requested instructions where there was not resulting substantial, prejudicial error. Armentrout v. FMC Corp., 842 P.2d 175, 186 (Colo.1992). Prejudicial error exists when the record shows that a jury might have reached a different verdict if a proper instruction had been given. See Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App.1996).

B. Law

¶ 12 A party is entitled to an instruction embodying his or her theory of the case if it is supported by competent evidence and is consistent with existing law. Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 112, 570 P.2d 239, 242 (1977). While a litigant is generally entitled to a theory of the case instruction, the trial court need not give the litigant's tendered instruction if the other instructions encompass the litigant's theory. Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.2009).

¶ 13 CJI–Civ. 15:4 is based on McGraw v. Kerr, 23 Colo.App. 163, 167–68, 128 P. 870, 872–73 (1912), later approved in Brown v. Hughes, 94 Colo. 295, 303–04, 30 P.2d 259, 262 (1934) (a physician does not undertake to warrant a cure and is not responsible for want of success unless it results from a failure to exercise ordinary care).

¶ 14 In Day, 255 P.3d at 1072, the supreme court held that a portion of that pattern instruction, not at issue here, accurately reflects Colorado medical malpractice law. The pattern instruction is based on a fundamental tenet of tort law, which is that the mere occurrence of an injury or accident, in and of itself, does not mean that the injury was the result of negligence. Id. at 1069 (a poor outcome does not, standing alone, constitute negligence); Melville v. Southward, 791 P.2d 383, 390 (Colo.1990) (mere presence of an infection following surgery does not establish prima facie case of negligence); Schlesselman v. Gouge, 163 Colo. 312, 321, 431 P.2d 35, 39 (1967) ([W]e have repeatedly held that ... ‘the fact that there was a lamentable result is not of itself evidence of negligence on the part of the defendants.’ (quoting Brown, 94 Colo. at 306, 30 P.2d at 263)); Locke v. Van Wyke, 91 Colo. 14, 21, 11 P.2d 563, 564 (1932) (“a bad result in itself is no evidence of negligence”); Smith v. Curran, 28 Colo.App. 358, 362, 472 P.2d 769, 771 (1970) (proof of a bad result is not of itself evidence of negligent treatment by a doctor). Essentially, the instruction is given to disabuse the jury of any notion that a bad result is by itself negligence and informs the jury that it cannot consider the bad outcome alone in determining whether the applicable standard of care has been met.

C. Application

¶ 15 Here, following the surgery, Wolter ordered an MRI based on Schuessler's post-surgery symptoms of pain, weakness, and hypersensitivity on his right side. The MRI showed a “focal area of cord signal abnormality” within the spinal cord at the level of two vertebrae near where Wolter had performed the ACDF procedure.

¶ 16 As previously noted, at trial, Schuessler argued that the surgical complication he sustained could not have occurred absent negligence, while Wolter's theory of the case was that such a complication is a known risk that can occur in ACDF surgery without negligence. The record indicates that the experts on both sides agreed that Schuessler's postoperative myelopathic pain syndrome was a bad outcome.

¶ 17 The trial court refused to provide the tendered instruction, concluding that it was inapplicable because the surgery successfully resolved the cervical disk problems that had led to Schuessler's surgery. We agree with Wolter that the court erred in rejecting the instruction.

¶ 18 The proffered instruction accurately states the law, see Day, 255 P.3d at 1069 (“a poor outcome does not, standing alone, constitute negligence”); the evidence provided by the expert witnesses for both sides...

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