Settle v. Basinger

• Decision Date: 28 February 2013
• Citation: 411 P.3d 717
• Docket Number: 11CA1342
• Parties: William P. SETTLE and Corinna Settle, Plaintiffs–Appellants, v. Janet M. BASINGER, M.D. and Valley Citizens Foundation for Health Care, Inc., d/b/a/ Rio Grande Hospital, Defendants–Appellees.
• Court: Colorado Court of Appeals

411 P.3d 717

William P. SETTLE and Corinna Settle, Plaintiffs–Appellants,

v.Janet M. BASINGER, M.D. and Valley Citizens Foundation for Health Care, Inc., d/b/a/ Rio Grande Hospital, Defendants–Appellees.

No. 11CA1342

Colorado Court of Appeals, Div. IV.

Announced February 28, 2013

Charles C. Powers, South Fork, Colorado, for Plaintiffs–Appellants

Hall & Evans, LLC, Alan Epstein, Jessie Pellant, Denver, Colorado; Treece Alfrey Musat, PC, Thomas N. Alfrey, Rusty D. Miller, Denver, Colorado, for Defendants–Appellees

Opinion by JUDGE CARPARELLI

¶ 1 Plaintiffs, William P. and Corinna Settle, appeal the judgment of the trial court in favor of Janet Basinger, M.D., and Rio Grande Citizens Foundation for Health Care, Inc. (Rio Grande Hospital). We affirm.

¶ 2 In this case, we conclude, among other things, that the captain of the ship doctrine does not render an emergency room physician vicariously liable for negligent acts committed in the emergency room by non-hospital employees.

I. Background

¶ 3 In August 2005, Mr. Settle sustained injuries when the ATV he was riding flipped and landed on him. He suffered fractured ribs, a collapsed lung, and a pneumothorax.¹

¶ 4 Mr. Settle was transported by ambulance to the Rio Grande Hospital emergency room where Dr. Basinger was on duty. There, Dr. Basinger inserted a chest tube to remove air from his chest cavity. She then decided to transfer Mr. Settle to Swedish Medical Center in Denver (Swedish). Swedish arranged for Air Life, an organization independent from the hospitals, to transport him.

¶ 5 According to Dr. Basinger's notes, when the Air Life nurses arrived Mr. Settle was showing some improvement in lung inflation "but [there was] more surrounding blood in [his] chest cavity," and his "breathing was more labored so decided [sic] to sedate and intubate" him. Dr. Basinger inserted another chest tube to try to resolve the pneumothorax.

¶ 6 While Dr. Basinger was placing the chest tube, the Air Life nurses made two unsuccessful attempts to intubate Mr. Settle. Another physician also made an unsuccessful attempt at intubation. That physician and the Air Life nurses eventually inserted a "Combitube" to stabilize Mr. Settle and ensure he had adequate oxygen for the flight. Dr. Basinger then discharged Mr. Settle to the flight crew.

¶ 7 At Swedish, Dr. Warner discovered lacerations in Mr. Settle's posterior trachea and anterior and posterior esophagus, which she attributed to "traumatic intubation presumably from the Combivent tube." The lacerations required multiple surgeries to repair.

II. Procedural History

¶ 8 Plaintiffs filed suit against the physician who attempted to intubate Mr. Settle, Rio Grande Hospital, Air Life, Dr. Basinger, and two Air Life nurses. The complaint alleged that Mr. Settle sustained the tracheal and esophageal lacerations when the Air Life nurses and the physician tried to intubate him. Plaintiffs also alleged that Dr. Basinger "negligently failed to examine, diagnose, observe, treat, and administer the medical care given to Mr. Settle," and that her negligence was a cause of the tracheal and esophageal lacerations.

A. Dr. Basinger's Motion for Summary Judgment and Plaintiffs' Motion to Amend the Complaint

¶ 9 Dr. Basinger sought summary judgment, asserting that she had not attempted the intubation and, therefore, as a matter of law, could not be liable for the injuries to Mr. Settle's trachea and esophagus.

¶ 10 Before the trial court ruled on Dr. Basinger's motion for summary judgment, plaintiffs sought to amend their complaint to add a claim that Mr. Settle's injuries resulted from Dr. Basinger's negligent supervision of the Air Life nurses' intubation efforts.

¶ 11 Plaintiffs' motion also sought to add a claim that Dr. Basinger was "in charge and was vicariously liable under the respond[eat] superior doctrine." Plaintiffs alleged that Dr. Basinger "was the physician in charge of the care and treatment of William Settle"; that Dr. Basinger was "immediately in the area ... while the intubation was in progress"; that the flight nurses were under the supervision of Dr. Basinger while in the emergency room; and that Dr. Basinger was directly and vicariously negligent as the attending physician.

¶ 12 The trial court denied the motion to amend the complaint. It concluded that although Colorado has applied the captain of the ship doctrine to operating room negligence, the doctrine has not been extended beyond the operating room. The court also concluded that negligent supervision does not apply to the facts of this case. The court then granted Dr. Basinger's motion for partial summary judgment, concluding that Dr. Basinger could not be held vicariously liable for the negligent acts of the Air Life nurses.

B. Rio Grande's Summary Judgment Motion

¶ 13 Rio Grande Hospital also sought summary judgment. It argued that, under the corporate practice of medicine doctrine, it could not be liable for the act of an employee who was a licensed physician unless it knew the physician lacked sufficient skills. The trial court granted Rio Grande's motion with regard to plaintiffs' negligent credentialing claim.

C. Trials

¶ 14 The case then went to trial on plaintiffs' negligence claims against the six defendants, including the claim that Dr. Basinger negligently failed to examine, diagnose, observe, treat, and administer the medical care given to Mr. Settle, and that her negligence was a cause of Mr. Settle's tracheal and esophageal lacerations.

¶ 15 The first trial ended in a mistrial. Before the second trial, plaintiffs agreed to dismiss their claims against the Air Life nurses. Plaintiffs also settled with the physician who had attempted to intubate Mr. Settle, leaving Dr. Basinger and Rio Grande Hospital as the remaining defendants.

¶ 16 At the second trial, the jury found Dr. Basinger was negligent, but her negligence did not cause Mr. Settle's injuries.

¶ 17 Plaintiffs now appeal and contend the court erred when it:

• denied the motion to amend the complaint;

• granted Dr. Basinger's and Rio Grande Hospital's motions for summary judgment;

• limited cross-examination of Dr. Basinger and her expert witness, and excluded other impeachment evidence; and

• redacted portions of a witness's deposition, excluded evidence, and allowed defense counsel to vouch for the credibility of a defense witness.

¶ 18 We conclude that the trial court did not err.

III. Plaintiffs' Motion to Amend the Complaint

¶ 19 Plaintiffs contend that the trial court erred when it denied their motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses. We perceive no error.

A. Standard of Review

¶ 20 The decision to grant or deny a motion to amend a complaint is committed to the sound discretion of the trial court and will not be reversed on review without a showing of an abuse of discretion. Polk v. Denver District Court, 849 P.2d 23, 25 (Colo.1993) ; Sterenbuch v. Goss , 266 P.3d 428, 440 (Colo.App.2011). A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. People v. Stewart , 55 P.3d 107, 122 (Colo.2002) ; E–470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230 (Colo.App.2006).

¶ 21 A trial court may properly deny a motion to amend a complaint where amendment would be futile. Cody Park Property Owners' Ass'n v. Harder, 251 P.3d 1, 5 (Colo.App.2009). An amendment is futile if it would not withstand a motion to dismiss. Id . (citing Bristol Co. v. Osman, 190 P.3d 752, 759 (Colo.App.2007) ).

B. Direct Liability for Negligent Supervision

¶ 22 Plaintiffs argue that the trial court erred when it denied their motion to add a claim for negligent supervision of the Air Life nurses. We disagree.

¶ 23 To prove negligent supervision, a plaintiff must prove (1) the defendant owed the plaintiff a legal duty to supervise others; (2) the defendant breached that duty; and (3) the breach of the duty caused the harm that resulted in damages to the plaintiff. Keller v. Koca, 111 P.3d 445, 447 (Colo.2005).

1. Duty to Supervise

¶ 24 "Whether a particular defendant owes a legal duty to a particular plaintiff, as well as the scope of the duty, are questions of law for [the] court to resolve." Bath Excavating & Constr. Co. v.Wills, 847 P.2d 1141, 1147 (Colo.1993).

¶ 25 To determine whether a defendant has a legal duty, courts consider the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor. Id.

¶ 26 The duty to supervise an agent or employee arises when the principal or employer "has reason to know " that the agent or employee "is likely to harm others" because of "his [or her] qualities " and "the work or instrumentalities entrusted to him [or her]." Destefano v. Grabrian, 763 P.2d 275, 287 (Colo.1988) (emphasis added) (quoting Restatement (Second) of Agency § 213 cmt. d (1958) (Restatement)). Thus, there is no liability for breach of the duty to supervise unless the principal or employer both knows the agent or employee is not "incompetent, vicious, or careless," and does not take "the care which a prudent [person] would take in selecting the person for the business in hand." Id. (quoting Restatement § 213 cmt. d); accord Keller, 111 P.3d at 448 (duty breached where "employer knows or should have known that the employee would cause harm"); Moses v. Diocese of Colorado, 863 P.2d 310, 327 (Colo.1993) (breach of the duty of care not to recognize "potential employee's ‘attribute[s] of character or prior conduct’ which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities" (quoting Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1321 (Colo.1992) )).

2. Analysis and Conclusions

¶ 27 The trial court did not abuse its discretion when it denied plaintiffs' motion to add...