“O Captain! my Captain! our fearful [intubation] is done” – Walt Whitman. Two nurses and a doctor made a number of failed attempts to intubate a Patient prior to an Air Life transport. The attempts injured Patient’s throat who sued, among others, the ER doctor and hospital who handed him off to Air Life staff. Plaintiff appealed partial summary judgment in favor of hospital and ER doctor on issues of vicarious liability and certain evidentiary rulings at trial. The court of appeals held: 1) the “captain of the ship” doctrine does not apply to ER doctors and 2) negligent supervision cannot be brought under vicarious liability doctrines. The court also upheld the exclusion of facts plaintiff sought to use for impeachment, including the medical history of the ER doctor and that both the defendant and an expert witness were insured by the same carrier. Trial court’s rulings were affirmed.
Tag Archives: Medical Malpractice
William P. Settle and Corinna Settle v. Janet M. Basinger, M.D. and Rio Grande Hospital, 2013COA18 (February 28, 2013)
Rarely do courts invite review of their opinions, but in this case the court of appeals urged the Supreme Court to review “the potential inconsistency” between CRE 301 and precedent holding that the res ipsa loquitur doctrine shifts the burden of proof to the defendant. This is a medical malpractice case in which the facts of what actually happened during an angiogram were hotly contested. In Weiss v. Axler, 137 Colo. 544 (1958) the Supreme Court expressly held that if the doctrine applies, the defendant must prove the absence of negligence. In 1979, CRE 301 was adopted, and expressly states that presumptions (such as a presumption of negligence) do not shift the burden of proof. The court of appeals held that Weiss remains good law, and the trial court erred by refusing to instruct the jury that the burden shifted to the defendant to show he was not negligent. A new trial was ordered.
In Re Stacy Warden and Chris Warden as representatives of Noah Warden, a minor child v. Exempla, Inc. d/b/a Exempla Healthcare, et. al., 2012CO74 (December 20, 2012)
As we have re-discovered, after a tragedy people look for a cause. In this medical malpractice case, a baby was born with brain damage after being deprived of oxygen. The parents claim the cause was failure to monitor the baby during birth; the hospital claims the damage preceded labor. Three of Plaintiff’s experts were excluded. The Court reversed the exclusions. The first expert was excluded because she did not respond to Defendants’ experts. The Court disagreed, as she might refute Defendants’ theory of causation which relied heavily on a study she critiqued. Two experts addressing the child’s life expectancy were excluded as an “ambush.” The testimony should have been initially disclosed, but the delay was harmless because: 1) the trial is months away, 2) the importance to Plaintiff’s claim, 3) Defendants’ own experts raised the defense, and 4) lack of evidence of bad faith.