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Danko v. Conyers

Court of Appeals of Colorado, Third Division

February 8, 2018

Deborah Danko, Plaintiff-Appellee and Cross-Appellant,
David J. Conyers, M.D., Defendant-Appellant and Cross-Appellee.

         Boulder County District Court No. 14CV30542 Honorable Norma A. Sierra, Judge

          Leventhal & Puga, P.C., Jim Leventhal, Erin C. Genullis, S. Paige Singleton, Benjamin I. Sachs, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

          Jaudon & Avery LLP, David H. Yun, Denver, Colorado, for Defendant-Appellant and Cross-Appellee


          WEBB, JUDGE

          ¶ 1 In a medical negligence case, should the initial provider be allowed to present evidence that a later provider's negligence caused the injury for which the patient seeks to recover damages from the initial provider? Does the answer depend on whether the initial provider attempts to apportion fault or seeks complete exoneration because, even if he or she was negligent, the later provider's negligence was a superseding cause of the patient's injury?

         ¶ 2 David J. Conyers, M.D., who performed carpal tunnel surgery on Deborah Danko, appeals the judgment entered on a jury verdict in favor of Ms. Danko. According to Ms. Danko, Dr. Conyers negligently failed to detect an infection resulting from the surgery, which led to amputation of her forearm. Dr. Conyers challenges rulings before and during trial excluding his expert testimony that amputation of Ms. Danko's forearm by another physician, four months after she had been discharged from Dr. Conyers' care, was unnecessary. Dr. Conyers raised the other physician's treatment not as a basis to apportion fault, but as a superseding cause that relieved him of any liability. He also challenges jury instructions related to this issue.

          ¶ 3 Ms. Danko concedes preservation. She cross-appeals the trial court's refusal to award some costs that she incurred.

         ¶ 4 We conclude that because Dr. Conyers did not present evidence that the amputation was extraordinary, the trial court acted within its discretion in excluding evidence of the other provider's negligence. Rejecting Dr. Conyers' other contentions, we affirm the judgment. We reverse the cost award in part.

          I. Background and Procedural History

         ¶ 5 Dr. Conyers, a hand surgeon, performed carpal tunnel release surgery on Ms. Danko's right wrist on May 3, 2012. During post-operative care, he did not order a biopsy to detect possible infection. In October 2012, he released her from further care, believing that the wound was healing normally and was not infected.

         ¶ 6 A month later, Ms. Danko sought a second opinion from Dr. Frank Scott. Dr. Scott performed a minor procedure on Ms. Danko's wrist. Three weeks later, Dr. Scott was notified that cultures taken during the procedure had grown out acid-fast bacilli. Ms. Danko was diagnosed with a mycobacterium fortuitum (MBF) infection.

          ¶ 7 On January 16, 2013, Ms. Danko saw Dr. Carla Savelli, an infectious disease specialist. Dr. Savelli recommended long-term dual therapy involving a regimen of several antibiotics and periodic surgical debridement of infected tissue. Ms. Danko began taking antibiotics.

         ¶ 8 Two weeks later, Ms. Danko consulted Dr. Bennie Lindeque, an orthopedic surgeon. Dr. Lindeque recommended amputation of Ms. Danko's forearm "due to the severity and level of tendon and nerve involvement." He performed the amputation on February 11.

         ¶ 9 Ms. Danko sued Dr. Conyers, alleging that because he had failed to diagnose her MBF infection, he was responsible for the amputation. Her retained experts opined that had Dr. Conyers ordered a biopsy in July or August, the MBF infection would have been detected, dual therapy could have begun, and amputation would not have been required.

         ¶ 10 Among other affirmative defenses in Dr. Conyers' answer, he raised nonparty at fault under section 13-21-111.5, C.R.S. 2017. Dr. Conyers obtained an extension for designating nonparties. Ultimately, he did not do so.

          ¶ 11 Before trial, Ms. Danko moved to strike the nonparty at fault defense and to preclude evidence of other providers' negligence or fault. The trial court granted the motion. After citing Restatement (Second) of Torts section 457 (Am. Law Inst. 1965) (hereinafter Restatement), CRE 401, 402, and 403, the court explained:

In this Court's opinion, it would result in confusion to jurors were Dr. Conyers to be permitted to muddle the waters by calling into question the service rendered by subsequent doctors, where under [section 457 of] the Restatement of Torts, if the jury finds he was negligent, legally he would be the sole cause of Ms. Danko's losses.

         ¶ 12 During trial, the court adhered to this ruling. Still, the court allowed Dr. Conyers to present evidence as to the standard treatment of antibiotics and debridement for MBF infections, that Ms. Danko could have been treated this way even after she left Dr. Conyers' care, that she was improving under Dr. Savelli's treatment, that post-amputation photographs of the dissected limb showed healthy nerves and tendons, and that Dr. Conyers' care did not cause the amputation.

         ¶ 13 In depositions and at trial, both Dr. Conyers and his principal expert acknowledged that failing to diagnose and treat an MBF infection earlier makes further medical treatment foreseeable. They conceded that an undiagnosed and untreated MBF infection can lead to amputation of the infected limb.

         ¶ 14 After Dr. Conyers rested, Ms. Danko moved for a directed verdict on causation and requested a nonpattern instruction on the original tortfeasor rule embodied in Restatement section 457. The trial court denied the motion. Over defense objection, the court gave the following nonpattern instruction:

The plaintiff, Deborah Danko, is entitled to recover damages to the full extent of injuries and losses suffered as a result of the negligence, if any, of the defendant, Dr. Conyers, even if the injuries and losses she suffered may have been greater due to the course of medical care and treatment she received thereafter.

         It also gave a standard instruction on causation.

          ¶ 15 The court rejected Dr. Conyers' tendered instructions on intervening cause. It also rejected a tendered instruction that Dr. Conyers would be liable for any additional bodily harm (e.g., amputation caused by subsequent health care providers), "provided that you also find that the additional bodily harm resulted from the normal efforts of health care providers in rendering aid which the plaintiff's injury reasonably required, irrespective of whether such acts were done in a proper or negligent manner."

         ¶ 16 The jury found Dr. Conyers liable and awarded damages of $1.5 million.

II. The Trial Court Erred by Relying on Section 13-21-111.5 to Exclude Evidence That Other Providers Caused Ms. Danko's Injuries

         ¶ 17 The trial court held that "[b]y failing to designate the [other] providers as nonparties at fault, Dr. Conyers lost the right to argue that these providers caused Ms. Danko's injuries." It explained that "[t]his ruling serves to exclude at trial any expert testimony concerning the standard of care related to the [other] providers."

         ¶ 18 The court based this part of its ruling on section 13-21-111.5(3)(b), which provides that the "[n]egligence or fault of a nonparty may be considered . . . if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action . . . ." According to Ms. Danko, we must affirm the trial court's exclusion of evidence related to other providers' negligence or fault under this statute.

          A. Standard of Review

         ¶ 19 Questions of law concerning the application and construction of statutes are subject to de novo review. City & Cty. of Denver Sch. Dist. No. 1 v. Denver Classroom Teachers Ass'n, 2017 CO 30, ¶ 32.

         B. Analysis

         ¶ 20 Ms. Danko asserts that "Colorado law forbids the admission of evidence of a non-party's fault where that non-party was not properly designated." She relies on cases such as Thompson v. Colorado & Eastern Railroad Co., 852 P.2d 1328, 1330 (Colo.App. 1993), where the division held that "a court may not allow the finder of fact to consider the negligence or fault of a nonparty unless such issue has properly been raised by the defendant in a pleading which complies with the requirements of [section] 13-21-111.5(3)."

         ¶ 21 But the supreme court has held that "a defendant may always attempt to interpose a complete defense that his acts or omissions were not the cause of the plaintiff's injuries." Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001). In other words, "[a] defense that the defendant did not cause the plaintiff's injuries is not equivalent to the designation of a non-party because it cannot result in apportionment of liability, but rather is a complete defense if successful." Id. (citing Staley v. Bridgestone/Firestone, Inc., 106 F.3d 1504, 1512 (10th Cir. 1997)); see Staley, 106 F.3d at 1512 ("[Defendant] can only be held liable if its conduct was a contributing cause of the injury. It surely must be allowed to defend itself by showing someone else's action or inaction was the sole cause of the injury. That is different from apportionment between two parties both of whose fault contributed to the injury.").

         ¶ 22 Dr. Conyers did not seek to apportion fault between him and the other providers. Instead, he sought to admit evidence that their care - not his - had caused Ms. Danko's amputation. Under Redden, such evidence is admissible even if a nonparty at fault has not been designated under section 13-21-111.5. Thus, this portion of the trial court's rationale was incorrect.

         ¶ 23 Still, the trial court did not base its evidentiary ruling solely on section 13-21-111.5. See URS Grp., Inc. v. Tetra Tech FW, Inc., 181 P.3d 380, 387 (Colo.App. 2008) ("[W]e must next consider whether the judgment may nevertheless be affirmed on one of the alternative grounds . . . ."); cf. Foxley v. Foxley, 939 P.2d 455, 458-59 (Colo.App. 1996) (appellant must challenge all of the trial court's alternative bases for dismissal). So, we turn to whether excluding evidence related to the negligence or fault of other providers was proper under Restatement section 457, sometimes called the original tortfeasor rule.

         III. The Trial Court Did Not Abuse Its Discretion by Relying on Restatement Section 457 to Exclude Evidence of Other Providers' Fault

         ¶ 24 The trial court found the following under CRE 401 and CRE 402:

Even if Dr. Conyers can establish that [the] other . . . providers were negligent - an assumption made only for purposes of considering [Dr. Conyers' position] - the Restatement of Torts [section 457] would hold any injuries flowing from this subsequent care as being causally related to the care provided by Dr. Conyers. Accordingly, the necessity of [the] decision to amputate the arm is irrelevant if it resulted from any negligence on the part of Dr. Conyers to not diagnose the infection.

         A. Standard of Review

         ¶ 25 Dr. Conyers urges us to review this ruling de novo. He argues that the trial court misinterpreted Restatement section 457 by disregarding an exception to initial physician liability and thus applied an incorrect legal standard, which raises a question of law. See Bd. of Cty. Comm'rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34 ("Whether the court misapplied the law in making evidentiary rulings is reviewed de novo."). And if the court applied an incorrect legal standard, Dr. Conyers continues, the court abused its discretion. Id. ("An abuse of discretion occurs where the trial court's ruling . . . was based on a misunderstanding or misapplication of the law.").

         ¶ 26 But this argument must be juxtaposed against a trial court's broad discretion to admit or exclude evidence. See Mullins v. Med. Lien Mgmt., Inc., 2013 COA 134, ¶ 35. Thus, while we review the court's application of Restatement section 457 de novo, unless it misunderstood this section, the decision to exclude the evidence remains within the court's discretion.

         B. Analysis

         ¶ 27 Colorado has adopted the approach set forth in Restatement section 457, which provides:

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

(Emphasis added.) See Redden, 38 P.3d at 81 n.2 ("We recognize that Colorado case law does not absolve tortfeasors of liability when the plaintiff's injuries result from medical treatment reasonably sought and directly related to the actions of the ...

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