Young By and Through Young v. Carpenter

• Decision Date: 02 August 1984
• Docket Number: No. 82CA1362,82CA1362
• Citation: 694 P.2d 861
• Parties: Kayla YOUNG, a minor, By and Through her parents and next friends, Charlotte YOUNG and Carl Young, Plaintiff-Appellant, v. Stephen CARPENTER, M.D., Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 861

694 P.2d 861

Kayla YOUNG, a minor, By and Through her parents and next friends, Charlotte YOUNG and Carl Young, Plaintiff-Appellant, v. Stephen CARPENTER, M.D., Defendant-Appellee.

No. 82CA1362.

Colorado Court of Appeals Div. I.

Aug. 2, 1984.

Rehearing Denied Aug. 30, 1984.

Certiorari Denied Jan. 14, 1985.

Hoffman & McDermott, Gerald P. McDermott, William J. Hansen, Denver, for plaintiff-appellant.

Pryor, Carney & Johnson, P.C., Thomas L. Roberts, Susan T. Smith, Englewood, for defendant-appellee.

BABCOCK, Judge.

In this medical malpractice action, plaintiff, Kayla Young, by her parents, Charlotte and Carl Young, appeals from an adverse judgment entered upon a jury verdict in favor of defendant, Stephen Carpenter, M.D. The primary issue presented is whether the trial court erred in refusing to instruct the jury on the theory of vicarious liability. In addition, plaintiff seeks reversal of the judgment entered upon her claim of direct negligence asserting juror bias. We affirm in part, reverse in part, and remand for new trial.

Shortly after admission to St. Joseph Hospital for the delivery of Kayla, Mrs. Young was examined by defendant, the attending physician, who determined that her delivery would be a vaginal delivery of an average sized infant. Several hours later, Mrs. Young's labor arrested, and the possibility of a caesarean section was discussed by defendant with the Youngs. This possibility was dismissed approximately two hours later when labor resumed. A precipitous delivery ensued thirty minutes thereafter.

Dr. Keeler, a licensed physician and third year obstetric resident, in response to the emergency call for a sterile package for precipitous delivery, went immediately to the labor room. Kayla's head was crowning. Accordingly, he delivered her head. However, it retracted against the perineum, which indicated shoulder dystocia, i.e., impaction of the infant's shoulder behind the mother's pubic bone. After verifying the existence of this condition, Dr. Keeler attempted routine maneuvers to release the shoulder and deliver Kayla.

At some time during Dr. Keeler's attempt to deliver Kayla, defendant entered the labor room, inquired as to what had occurred, then took over. After repositioning Mrs. Young on the bed, he repeated the routine traction maneuver previously performed by Dr. Keeler. Despite the addition of external suprapubic pressure, this maneuver proved again to be unsuccessful. Defendant finally delivered Kayla by extracting her free arm which released the impacted shoulder. As a result of this difficult delivery, Kayla sustained a spinal nerve injury which resulted in permanent partial paralysis of the right shoulder and arm.

This action was commenced, in which it was alleged that Kayla's injury was caused by the use of excessive traction during delivery and naming Kaiser-Permanente Medical Group, St. Joseph Hospital, Dr. Keeler, Dr. Pfeiff (who provided prenatal care), and Dr. Carpenter as defendants. Prior to trial, claims asserted against certain defendants were bifurcated, and settlements were negotiated with several of the other defendants, including Dr. Keeler, leaving Dr. Carpenter the sole defendant.

A.

Several days prior to settlement of the claims asserted against Dr. Keeler, the trial court granted his motion for summary judgment apparently on the basis that plaintiff had failed to provide expert testimony with respect to Dr. Keeler's alleged negligence. Pursuant to the settlement agreement, plaintiff, although contending that the trial court's ruling was erroneous, see Smith v. Hoffman, 656 P.2d 1327 (Colo.App.1982), waived the right to appeal the grant of summary judgment and reserved the right to pursue her claims against defendant. For the first time on appeal, defendant contends that the granting of the summary judgment bars plaintiff's assertion of Dr. Keeler's alleged negligence as a means of imposing vicarious liability on defendant. We disagree.

Following the granting of the summary judgment for Dr. Keeler and subsequent acceptance of the settlement agreement, defendant amended his answer to include the defense of negligence of third parties. In addition, he reserved both the right to call any witnesses endorsed by those defendants who were no longer parties to the action and his rights, if any, under the Uniform Contribution Among Tortfeasors Act. At no time during trial, or in his post-trial motions, did defendant interpose the defense now asserted; consequently, the trial court was not given an opportunity to address it. Accordingly, defendant cannot now avoid plaintiff's claims based on vicarious liability on this basis. Boulderado Motors, Inc. v. Peterson, 100 Colo. 243, 66 P.2d 1271 (1937).

B.

Having concluded that the imposition of vicarious liability is not barred as a matter of law, we must determine whether there exists sufficient evidence to support plaintiff's claim based on this theory.

The "captain of the ship" doctrine, which is grounded in respondeat superior, has been applied in Colorado to impose vicarious liability on a surgeon for the negligence of hospital employees under his control and supervision during surgery. Adams v. Leidholt, 195 Colo. 450, 579 P.2d 618 (1978); Beadles v. Metayka, 135 Colo. 366, 311 P.2d 711 (1957). A crucial determination in establishing the applicability of the doctrine is the time when the surgeon assumes supervision and direction in the operating room. Beadles v. Metayka, supra. This question is...