Sereff v. Steedle, Court of Appeals No. 03CA1445 (CO 8/11/2005)
| Decision Date | 11 August 2005 |
| Docket Number | Court of Appeals No. 03CA1445. |
| Parties | Bradley Scott Sereff, individually and as personal representative of the Estate of Jennifer Sereff; Elliott Sereff, through his guardian, father, and next friend, Bradley Scott Sereff; and Skylar Sereff, through her guardian, father, and next friend, Bradley Scott Sereff, Plaintiffs-Appellants, v. David W. Steedle, MD; Neil Waldman, MD; City & County of Denver; and Denver General Hospital, n/k/a Denver Heath Medical Center, Defendants-Appellees. |
| Court | Colorado Supreme Court |
Leventhal Brown & Puga, P.C., Timms R. Fowler, Anthony Viorst, Timothy G. Buxton, Denver, Colorado, for Plaintiffs-Appellants.
Johnson, McConaty & Sargent, P.C., Craig A. Sargent, Bradley G. Robinson, Glendale, Colorado, for Defendant-Appellee David W. Steedle, MD.
Cole Finegan, City Attorney, John Eckhardt, Assistant City Attorney, Denver, Colorado, for Defendant-Appellee Neil Waldman, MD.
Dickinson Prud'homme Adams & Ingram, LLP, Douglas E. Best, Denver, Colorado, for Defendants-Appellees City and County of Denver and Denver General Hospital.
Opinion by: JUDGE HAWTHORNE
This medical malpractice action arises from the death of Jennifer Sereff, the wife of Bradley Scott Sereff, and mother of Elliot Sereff and Skylar Sereff. The relevant underlying facts are set forth in a prior interlocutory appeal brought by Waldman and Steedle challenging the trial court's 1998 ruling that it had subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. 2004, to hear the action against them. See Sereff v. Waldman, 30 P.3d 754 (Colo. App. 2000).
In Sereff, a division of this court held that the operation of a residency program out of DGH, in which Waldman was enrolled and Steedle acted as his supervisor, constituted the operation of a public hospital for purposes of waiving defendants' immunity under the GIA. The division also held that the location of the alleged malpractice, at a private hospital rather than at DGH, did not preclude a determination that the treatment provided to the deceased constituted part of the operation of a public hospital. Finally, the division rejected Waldman's contention that because the practice of medicine and the operation of a public hospital are separate and distinct from one another and require separate licenses, the operation of a public hospital for purposes of § 24-10-106(1)(f), C.R.S. 2004, does not include the practice of medicine. In concluding that the actions of Waldman and Steedle fell within the operation of a public hospital, and that their immunity had been waived under the GIA, the division did not address plaintiffs' contention that the trial court's order as to Steedle could be affirmed on the basis that he was not a public employee for purposes of the GIA.
Plaintiffs had also filed a motion requesting the trial court to declare the GIA unconstitutional. In 1999, the court denied that motion.
After jurisdiction over the action was returned to the trial court from the interlocutory appeal, defendants moved for leave to deposit $150,000 in the registry of the court. They argued that under § 24-10-114(1)(a), C.R.S. 2004, $150,000 constituted the maximum possible amount recoverable by plaintiffs from all defendants. The offer provided that if "any Appellate Court reverses this Court's determination that Dr. Steedle is a public employee, then Dr. Steedle, and these public Defendants hereby reserve the right to withdraw this deposit and reserve the right to proceed to trial on issues of liability, causation and damages." Defendants also moved for summary judgment on the issue of the maximum amount recoverable under § 24-10-114(1)(a).
The trial court initially denied defendants' motion, finding that each wrongful death claimant sustains his or her own independent injuries for purposes of applying the damage limitations under the GIA. However, upon defendants' motion to reconsider, the trial court addressed the motion as a request for determination of a question of law under C.R.C.P. 56(h), reversed itself, and concluded that $150,000 was the maximum plaintiffs were collectively entitled to recover from defendants. The court then allowed defendants to deposit the $150,000 into the registry of the court. Thereafter, the court dismissed the action against defendants.
Plaintiffs first contend that the trial court erred in finding that Steedle was a public employee for purposes of the GIA. We disagree.
The GIA defines a "public employee" as:
[A]n officer, employee, servant, or authorized volunteer of the public entity, whether or not compensated, elected, or appointed, but does not include an independent contractor or any person who is sentenced to participate in any type of useful public service. For the purposes of this subsection (4), "authorized volunteer" means a person who performs an act for the benefit of a public entity at the request of and subject to the control of such public entity.
Section 24-10-103(4)(a), C.R.S. 2004.
As pertinent here, "public employee" is further defined to include the following:
Any health care practitioner employed part-time by and holding a clinical faculty appointment at a public entity as to any injury caused by a health care practitioner-in-training under such health care practitioner's supervision. Any such person shall maintain the status of a public employee when such person engages in supervisory and educational activities over a health care practitioner-in-training at a nonpublic entity if said activities are within the course and scope of such person's responsibilities as an employee of a public entity.
Section 24-10-103(4)(b)(II), C.R.S. 2004.
Here, the record establishes, and it is not disputed by the parties, that Waldman participated in a residency program that was operated out of DGH and was known as the Denver Affiliated Regional Emergency Medicine (DAREM) program. It is also not disputed that Waldman was a public employee of DGH who was enrolled in the DAREM program and that he was acting in such capacity when he treated the deceased.
With regard to Steedle, the record establishes that he was the attending physician and that he was responsible for supervising Waldman at the time of the deceased's death. In addition, Steedle held a clinical faculty appointment with the DAREM program at that time. Although plaintiffs conceded in oral argument that Steedle was not a supervisor, the parties are bound by the law of the case that Steedle "was responsible for supervising Waldman during his care of the deceased." Sereff, supra, 30 P.3d at 755; see People v. Roybal, 672 P.2d 1003 (Colo. 1983) (). We see no reason not to apply the doctrine. See Vashone-Caruso v. Suthers, 29 P.3d 339, 342-43 (Colo. App. 2001) ().
Plaintiffs argue, however, that the record fails to establish that Steedle was "employed" by DGH. Rather, they contend that Steedle acted as an independent contractor and that he did not have an employment relationship with DGH because he was neither paid by DGH nor subject to its control. We are not persuaded.
In determining whether a supervisory employee constituted a public employee under the GIA, the supreme court has looked to the common law meaning of employee. See Norton v. Gilman, 949 P.2d 565 (Colo. 1997). The court noted that under the common law, the most important factor in determining whether a worker qualifies as an employee is the alleged employer's right to control the details of performance. The court noted that other relevant factors include the right to hire, the payment of salary, and the right to dismiss. See Norton v. Gilman, supra; see also Restatement (Second) of Agency § 220(2) (1958)(listing ten factors to consider).
Here, the record establishes that Steedle was employed by a private, professional corporation which staffed, with emergency room physicians, the private hospital where the deceased was treated. Steedle was paid by the corporation for his work at the hospital. However, Steedle was not paid a salary by DGH to supervise the residents placed at the hospital under the DAREM program. Nevertheless, the corporation for whom he worked was allowed to bill for any services provided by a resident when Steedle was acting as the attending physician. Thus, although Steedle did not receive a salary, it appears that he was indirectly compensated for his clinical faculty appointment.
With regard to whether Steedle was subject to DGH's control, the record reveals that a Memorandum of Understanding (MOU) governed the operation of the residency program at the private hospital where Steedle worked. The MOU set forth various responsibilities for the evaluation of faculty, the creation of guidelines to improve the teaching performance of attending physicians with substandard evaluations, the issuance of recommendations to the steering committee for the suspension of teaching privileges, and the formulation and implementation of a faculty development plan. The MOU provided that yearly evaluations would be conducted for each attending physician and...
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