Wallbank v. Rothenberg

• Decision Date: 02 January 2003
• Docket Number: No. 01CA1949.,01CA1949.
• Citation: 74 P.3d 413
• Parties: Nicholas WALLBANK and Mindilee Wallbank, individually and as parents of Emily Wallbank, a minor, Plaintiffs-Appellees, v. Steven S. ROTHENBERG, M.D., Defendant-Appellant.
• Court: Colorado Court of Appeals

74 P.3d 413

Nicholas WALLBANK and Mindilee Wallbank, individually and as parents of Emily Wallbank, a minor, Plaintiffs-Appellees, v. Steven S. ROTHENBERG, M.D., Defendant-Appellant.

No. 01CA1949.

Colorado Court of Appeals, Div. IV.

January 2, 2003.

Certiorari Granted July 21, 2003.

Leventhal, Brown & Puga, P.C., Natalie Brown, Anthony Viorst, Denver, Colorado, for Plaintiffs-Appellees.

Pryor, Johnson, Montoya, Carney & Carr, P.C., Irving G. Johnson, Elizabeth C. Moran, Aaron P. Bradford, Englewood, Colorado, for Defendant-Appellant.

Montgomery, Little & McGrew, P.C., Patrick T. O'Rourke, Englewood, Colorado, for Amicus Curiae Physician Insurers Association of America.

Mahoney Law Firm, Kevin S. Mahoney, Lakewood, Colorado, for Amicus Curiae Colorado Trial Lawyers Association.

Opinion by Judge TAUBMAN.

In this medical malpractice case, defendant, Steven S. Rothenberg, M.D., appeals the judgment entered on a jury verdict in favor of plaintiffs, Nicholas and Mindilee Wallbank, individually and as parents of Emily Wallbank. We affirm the judgment, but vacate the award for future medical expenses, reverse the trial court's determination not to reduce the jury's award in accordance with the one million dollar limitation on total damages under the Health Care Availability Act (HCAA), and remand for further proceedings.

This dispute arose from surgery that Rothenberg performed on six-week-old Emily Wallbank to remove a growth on her neck called a cystic hygroma. During surgery, Emily's facial nerve was injured, causing a partial paralysis of the right side of her face. In their lawsuit, the Wallbanks alleged that Rothenberg was negligent in not obtaining a CT scan or MRI before surgery to determine the extent of the growth on Emily's face. They also alleged that Rothenberg did not obtain their informed consent to surgery because he did not advise them of the risk of facial nerve injury or of alternatives to surgery.

Following a trial, the jury returned a verdict in favor of the Wallbanks on both the negligence and informed consent claims, awarding them a total of $1,348,560 in damages. Specifically, the jury awarded as damages $12,560 for past medical expenses, $80,000 for future medical expenses, $73,500 for lost future earnings, $182,500 for future noneconomic losses, and $1,000,000 for physical disfigurement. The trial court later denied Rothenberg's motions for new trial and to amend the judgment, and this appeal followed.

I. Testimony Concerning the Personal Practices of Expert Witnesses

Rothenberg argues that the trial court committed an error of law in permitting the Wallbanks to question the experts regarding their personal practices. We disagree.

Ordinarily, we review trial court ruling admitting or excluding evidence under an abuse of discretion standard. Hock v. New York Life Ins. Co., 876 P.2d 1242, 1251 (Colo. 1994). A court abuses its discretion when it rules based on an erroneous application of the law. See Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986)

.

A trial court's exercise of discretion should not be overturned on appeal unless its ruling was manifestly arbitrary, unreasonable, or unfair. People v. Moya, 899 P.2d 212 (Colo. App.1994).

In a medical malpractice case, the relevant standard of care is that of a reasonably careful physician acting as a specialist in the same field of practice. See Short v. Kinkade, 685 P.2d 210 (Colo.App.1983)

; see also CJI-Civ. 4th 15:3 (2001). To determine whether the applicable standard of care has been violated, the jury must compare the defendant's conduct with what a reasonably careful physician would do under the same circumstances. See Greene v. Thomas, 662 P.2d 491 (Colo.App.1982); see also CJI-Civ. 4th 15:3 (2001).

Because the applicable standard of care is not within the common knowledge and experience of ordinary people, the standard must be established by expert testimony in a medical malpractice case. United Blood Servs. v. Quintana, 827 P.2d 509, 520 (Colo.1992).

However, a determination of the nature and existence of a generally accepted standard of medical practice cannot be determined simply by counting how many physicians follow a particular practice. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188, 1194 (Colo.1994). According to the McCroskey court: "[A]scertaining the objectively reasonable standard of care is more than just a factual finding of what all, most, or even a `respectable minority' of physicians do, although the actual practice in a community is certainly the starting point in any analysis." State Bd. of Med. Exam'rs v. McCroskey, supra, 880 P.2d at 1194-95; see also Denver & Rio Grande R.R. v. Vitello, 34 Colo. 50, 81 P. 766 (1905)(holding that it was error to permit expert witnesses to testify as to what they would have done under circumstances similar to the train derailment at issue).

Here, in addition to Rothenberg, one expert testified on his behalf, while two experts testified on behalf of the Wallbanks. One of the Wallbanks' experts testified that the failure of Rothenberg to obtain a CT scan or MRI prior to operating on Emily was below the preoperative standard of care for physicians performing cystic hygroma surgery. The Wallbanks' other expert testified that while the standard of care would not necessarily have required obtaining a CT scan or MRI prior to surgery, she herself would have done so.

Rothenberg's expert testified that obtaining a CT scan or MRI was not required by the applicable standard of care, but that he personally would have obtained those tests before performing cystic hygroma surgery.

In denying the motion in limine, and again during trial when the Wallbanks' expert testified that obtaining a CT scan or MRI was not required by the standard of care, the trial court ruled that such testimony of the experts' personal practices was admissible and relevant as some evidence of the standard of care, as long as additional evidence was presented that Rothenberg's conduct fell below the standard of care.

Rothenberg argues that such evidence is irrelevant, because the personal preferences of a particular expert do not establish the standard of care. Indeed, Rothenberg maintains, such evidence is irrelevant because a practice different from that personally followed by an expert witness may also fall within the applicable standard of care. We are not persuaded.

While McCroskey and Vitello make it clear that a standard of care may not be established by the testimony of the personal practices of expert witnesses, those cases do not address whether this testimony may be relevant when other evidence is presented concerning the applicable standard of care. This question is a matter of first impression for Colorado appellate courts.

We conclude, as did the trial court, that testimony concerning the experts' personal practices was of some relevance because each expert also testified concerning the applicable standard of care. We reach this conclusion for the following reasons.

First, as the McCroskey court noted, "the actual practice in a community" is the starting point in determining a reasonable standard of care. Thus, once the expert testifies concerning the standard of care, then testimony of that expert's personal practices may help the jurors understand why that standard of care is followed by that expert or other experts.

Second, testimony regarding an expert's personal practices may either bolster or impeach the credibility of that expert's testimony concerning the standard of care. Here, the Wallbanks' expert who stated that the standard of care did not require obtaining a CT scan or MRI nevertheless stressed the importance of obtaining those tests when questioned about why she did so on a regular basis. Under CRE 607, the Wallbanks could impeach their own expert. Similarly, the Wallbanks properly cross-examined Rothenberg's expert concerning his personal practice to obtain tests, when he testified that the standard of care did not require obtaining a CT scan or MRI. See C. Frederick Overby, Trial Practice and Procedure, 51 Mercer L.Rev. 487, 501-02 (1999)("The relevance and importance of a medical expert's personal choice of a course of treatment is highly probative of the credibility of the expert's opinion concerning the standard of care. A jury is free to disregard the expert's opinion entirely and find that the standard of care is reflected by the course of treatment the expert would have chosen, a highly probable scenario if other evidence admitted in the case supports this proposition.").

Third, because each expert addressed the applicable standard of care, testimony regarding their personal practices was proper direct and cross-examination. Thus, the jury could give whatever weight it determined was appropriate to the testimony of those experts, including ignoring it completely. Similarly, during closing argument, counsel for each party was able to argue the significance of the experts' testimony as to their personal practices. Also, the jury was properly instructed concerning the applicable standard of care.

Accordingly, we conclude that the trial court did not abuse its discretion nor err as a matter of law in allowing the experts here to testify about their own practices as well as the applicable standard of care. See, e.g., Greenberg v. Bishop Clarkson Mem'l Hosp., 201 Neb. 215, 266 N.W.2d 902, 907 (1978)

(testimony that a physician would have acted differently from defendant, although not normally admissible, may be considered where ample medical testimony establishes the applicable standard of care); Miller v. Peterson, 42 Wash.App. 822, 714 P.2d 695 (1986)(while testimony reflecting only a personal opinion of experts that they would have followed a different course of treatment from that of the defendant is insufficient to establish a standard of care, there was no error to allow such testimony, because there was expert testimony on the standard of...