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In re P.W.

Supreme Court of Colorado, En Banc

January 25, 2016

In Re P.W., Individually and as Guardian and Conservator for K.W., a Minor Child, Plaintiff:
v.
Children's Hospital Colorado; Children's Hospital Colorado Health System; and the Children's Hospital Association, d/b/a the Children's Hospital Corporation, d/b/a the Children's Hospital of Colorado, Defendants:

Page 892

Original Proceeding Pursuant to C.A.R. 21 . Adams County District Court Case No. 14CV31314. Honorable Ted C. Tow III, Judge.

SYLLABUS

In this original proceeding arising out of a medical malpractice action, the supreme court considers whether the defendant hospital's comparative negligence and assumption of risk defenses were properly dismissed on summary judgment. First, the supreme court analyzes the nature of the defendant's duties toward the patient and determines that the defendant undertook to prevent the patient from engaging in self-harm. The supreme court then reasons that the scope of the defendant's assumption of duty subsumed any legal duty the patient had not to engage in foreseeable self-destructive behavior. Accordingly, the supreme court concludes that the defendant cannot assert the patient's comparative negligence under the facts of the case and discharges the rule.

For Plaintiff: Reilly Pozner LLP, Sean Connelly, Denver, Colorado; Hillyard Wahlberg Kudla Sloan & Woodruff LLP, David Woodruff, Steve Wahlberg, Denver, Colorado.

For Defendants: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado.

For Amicus Curiae The Regents of the University of Colorado: Office of University Counsel, Patrick T. O'Rourke, Erica Weston, Denver, Colorado.

For Amici Curiae Colorado Defense Lawyers Association and Community Hospital Association, d/b/a Boulder Community Hospital: Pryor Johnson Carney Karr Nixon, P.C., Stephen J. Hensen, Elizabeth C. Moran, Greenwood Village, Colorado.

For Amici Curiae Colorado Trial Lawyers Association: Anna N. Martinez, Greenwood Village, Colorado; Joseph F. Bennett, Colorado Springs, Colorado.

EID, JUSTICE does not participate.

OPINION

Page 893

RICE, CHIEF JUSTICE.

[¶1] In this original proceeding stemming from a medical malpractice action, we are asked to decide whether, as a matter of law, a known suicidal patient who is admitted to the secure mental health unit of a hospital and placed under high suicide-risk precautions can be subject to a comparative negligence defense when the patient attempts suicide while in the hospital's custody. Plaintiff P.W. sued Children's Hospital (the Hospital) both individually and as the conservator of his son K.W., who is in a minimally conscious state after suffering a devastating anoxic brain injury when he attempted to kill himself by hanging while at the Hospital. The trial court granted plaintiff's motion for summary judgment and dismissed the Hospital's comparative negligence and assumption of risk defenses. The trial court also issued an order preventing the Hospital from obtaining K.W.'s pre-incident mental health records.

[¶2] The Hospital petitioned this court for an order to show cause and we agreed to review the following three issues, as framed by the Hospital: (1) whether the trial court abused its discretion by precluding discovery of K.W.'s pre-incident mental health records related to his suicidal ideation even though Plaintiff claims Children's Hospital negligently failed to prevent K.W.'s suicide attempt, (2) whether the trial court abused its discretion by precluding discovery of records from K.W.'s treating psychiatrist and Cedar Springs Hospital when they were a part of a continuing course of treatment that included Children's Hospital, and (3) whether the trial court erred by granting Plaintiff summary judgment dismissing the comparative negligence and assumption of risk defenses despite evidence K.W. could think rationally and protect himself from harm during the hospitalization.

[¶3] We first analyze the trial court's dismissal of the Hospital's comparative negligence and assumption of risk defenses and hold that it was proper because, under the undisputed facts, the Hospital could not assert those defenses as a matter of law. Second, we conclude that we need not address the trial court's discovery order.

I. Facts and Procedural History

[¶4] K.W., a 16-year-old boy, was admitted to the emergency room at Children's Hospital at around 9 a.m. on June 26th, 2013, after his father discovered that he had ingested multiple pills and deeply lacerated his

Page 894

wrist in a suicide attempt.[1] K.W. had been struggling with depression and suicidal ideation for some time. In fact, he had been to the emergency room at the Hospital only a month earlier, when his concerned psychiatrist, Dr. David Williams, sent him there for a " crisis assessment." After that assessment, K.W. was admitted to Cedar Springs Hospital in Colorado Springs for inpatient psychiatric treatment. He was treated at Cedar Springs from May 25th through 29th and then returned home, where his parents believed " things had improved."

[¶5] However, at about 3 a.m. on June 26th, while his parents were asleep, K.W. broke into a locked safe full of medications and ingested approximately fifty pills, and then cut his left wrist. When his father woke him up later that morning he noticed the wrist laceration, and K.W. told him about the pills he had taken. They went to the emergency room where the doctors treated K.W. for the drug ingestion and closed his wound. Emergency room staff noted that K.W. would need to be referred to the psychiatric department " after medical clearance given [his] significant suicidal gesture." That day, K.W. told a mental health counselor that he was " suicidal" and that he was a " level 8 out of 10 for wanting to kill [him]self." He also told the counselor that " this was going to happen sooner or later." K.W. told providers he was " disappointed" that his suicide attempt had failed. Hospital staff contacted Dr. Williams and noted his recommendation that K.W. be ...


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